UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


L£j 


VS^UI 


•OKALIF(% 


NEW  JERSEY  LAW  REPORTS. 

VOLUME  XXX. 
VROOM  I. 


REPORTS  OF  CASES 


ARGUED  AND  DETERMINED  IN  THE 


SUPREME  COURT, 


COURT  OF  ERRORS  AND  APPEALS 


STATE  OF  NEW  JERSEY. 

PETER  D.  VROOM,  Reporter. 
VOLUME  I. 

-P. 

SECONEJkTDITION. 


TRENTON,  N.  J.: 
WILLIAM  S.  SHARP,  PRINTER  AND  STEREOTYPER. 

1879. 


This  volume  contains  the  opinions  delivered  in  the  Supreme 
Court,  from  June  Term,  1862,  to  February  Term,  1864, 
inclusive,  and  in  Law  Cases  in  the  Court  of  Errors  and 
Appeal'*,  from  November  Term,  1862,  to  June  Term,  1863, 
inclusive. 

References  show  where  the  cases  herein  reported  have  been 
cited,  affirmed,  or  overruled,  down  to  Part  I.,  Vol.  41,  N.  J. 
Law  Report*  (12  Vroorn),  and  Part  I.,  Vol.  31,  N.  J.  Equity 
Report*  (4  Stewart),  inclusive. 


NEW  JERSEY  REPORTS. 


LAW  REPORTS. 

COXE'S  REPORTS, 
PENNINGTON'S  REPORTS, 
-SOUTHARD'S 
HALSTED'S 
GREEN'S 
HARRISON'S 
SPENCER'S 
ZABRISKIE'S 
DUTCHER'S 
VROOM'S 


1  vol. 

2  « 

2  " 

7    " 

3  " 


-  4 
1 

-  4 
5 

-  1 


CHANCERY  REPORTS. 

SAXTON'S  REPORTS, 

GREEN'S 

HALSTED'S 

STOCKTON'S 

BEASLEY'S 

McCARTER'S 


1vol. 

3  " 

4  " 
3    " 
2    " 


778587 


JUSTICES  OF  THE  SUPREME  COURT  DURING  THE 
PERIOD  OF  THESE  REPORTS. 


HON.  EDWARD  W.  WHELPLEY,  CHIEF  JUSTICE. 

ASSOCIATE  JUSTICES. 

HON.  E.  B.  DAYTON  OGDEN, 
"      LUCIUS  Q.  C.  ELMER, 
"      DANIEL  HAINES, 
«      PETER  VREDENBURGH, 
"      JOHN  VAN  DYKE, 
"      GEORGE  H.  BROWN. 

HON.  F.  T.  FRELINGHUYSEN,  ATTORNEY  GENERAL. 

CHAS.  P.  SMITH,  ESQ.,  CLERK. 
vii 


JUDGES  OF  THE  COURT  OF  ERRORS  AND  APPEALS. 


EX  OFFIC1O  JUDGES. 

HON.  HENRY  W.  GREEN,  CHANCELLOR. 
"      EDWARD  W.  WHELPLEY,  CHIEF  JUSTICE. 
"      E.  B.  DAYTON  OGDEN, 


LUCIUS  Q.  C.  ELMER, 
DANIEL  HAINES, 
PETER  VREDENBURGH, 
JOHN  VAN  DYKE, 
GEORGE  H.  BROWN. 


• 


•X3 

M 

3  r-- 

B  ~ 
n   " 


O    on 

c  ^-. 


JUDGES  SPECIALLY  APPOINTED. 

HON.  JOHN  M.  (X)RXELISON, 
"     WILLIAM  N.  WOOD, 
«     JOSEPH  (XXMBS, 
"     ROBERT  8.  KENNEDY, 
"     GEORGE  F.  FORT, 
"     JOSHUA  SWAIN,  to  March  19,  1863. 
*     EDMUND  L.  B.  WALES,  from  March  19,  1863. 
WHITFIELD  S.  JOHNSON,  ESQ.,  CLERK. 
viii 


A  TABLE  OF  CASES 


EEPORTED  IN  THIS  VOLUME. 


Adams  and  Traphagen  v.  Ross- 
Adrian  ads.  Rowland 

Assessor,  Fourth  Ward,  Newark, 

ads.  Newark  City  Bank 

Assessor,  Fourth  Ward,  Newark, 

ads.  Wallen 

Aycrigg's  Ex'rs  v.  New  York 

and  Erie  Railroad 

B. 

Babcock  ads.  State..... 

Barker  ads.  Read 

Barnes  ads.  Handlong 

Beale  v.  Berryman 

Beardley  ads.  Meyer 

Beneficial  Society  of  Burlington 
v.  White 

Bergen  ads.  Staats 

Berry  v.  Doremus.  

Berryman  ads.  Beale 

Betts  v.  Francis 

Board  of  Education  of  Newark 
ads.  City  of  Newark 

Bond  et  al.  v.  Cox 

Bowne  ads.  Titus  &  Scudder 

Brain  v.  Snyder 

Bridges  and  Boyle  ads.  Mechan- 
ics and  Traders  Bank 

Bridges  and  Boyle  ads.  Rogers.. 

Brooks  ads.  State 

Bush  ads.  Doremus 

q. 

Callahan  v.  Township  of  Morris, 

Casson  ads.  Kirkpatrick 

€had  wick  ads.  Ortley 


505 
41 

13 

ib. 

460 


29 
378 

69 
216 
236 

313 
131 
399 
216 
152 

374 

381 

340 

56 

112 

ib. 

356 

85 


160 

331 

35 


Chambers  ads.  Grant  &  Kelly...  323 
Chase  et  al.  ads.  City  of  Jersey 

City 233 

City  of    Elizabeth    ads.    State, 

Woodruff,  pros 176 

City    of    Elizabeth    ads.    State, 

Hand,  pros 365 

City  of  Hoboken  v.  Harrison  et  al.     73 
City  of  Hoboken  ads.  State,  Ho- 
boken and  Weehawken  H. 

R.  R.  Co.,  pros 225 

City  of  Jersey  City  ads.  State, 

Piard  et  al.,  pros 148 

City  of  Jersey  City  v.  Chase  et  al..  233 
City  of  Jersey  City  ads.  State, 

Howeth,  pros 93,  521 

City  of  Jersey  City  ads.  State, 

Malone,  pros 250 

City  of  Newark  ads.  State,  Doyle, 

pros 303 

City  of  Newark  v.  Board  of  Edu- 
cation    374 

City    of   New    Brunswick    ads. 

State,  Parker,  pros 395 

Clerk   of    Hudson    county   ads. 

Fleming 280 

Clevinger  ads.   Town   of  Lam- 

bertville 53 

Clothier  ads.  State,  Fennimore, 

pros 351 

Colwell  and  Cavalier  ads.  Farrel,  123 
Conover  ads.  Thompson  and 

Petty 329 

Cook  v.  Smith 387 

Cooley  et  al.  ads.  Ordinary 179 

Cooley  and  West  ads.  Ordinary..  271 
Corlies  v.  Fleming  and  Corlies...  349 
Coulter  v.  Kaighn  and  Cooper...  98 
Cox  ads.  Bond  et  al...  381 


IX 


CASES  REPORTED. 


Cramer  et  al.  ads.  Kefnrd. 
Grocer  ads.  Sutphin 


250 


Davis  ads.  Lyons  and  Hen  net  t...  301 
Delaware,  Lackawanna,  and 

Western  R.  R.  Co.  ads.  State,  473 
Denny  ads.  State,  Camden  and 

Phila.  Ferry  Co.,  pros.. 421 

Donahay  ads.  State,  Winsor, 

pros 404 

Doremus  ads.  Berry 399 

Doremus  T.  Bush 85 

Dow  T.  Haley 354 

Drake  ads.  State 422 

Duboi*  ads.  iiaines 259 

E. 

Elkinton     and     Ferguson    ads. 

State 335 

F. 

Farmers  and  Mechanics  Bank  v. 

Green -  316 

Farrvl  T.  Colwell  and  Cavalier..  123 
Fleming  v.  Clerk  of  Hudson 

county.. 280 

Fleming  and  Corlies  ads.  Cor  lies,  349 

Francis  ads.  Belts. 152 

Fulton  ads.  Stall...  ...  430 


Qrahant  T.  Houghtalin 552 

Frant  A  Kelly  v.  Chambers 323 

Green  ad*.  Farmer* and  Mechan- 
ics Bank 316 

Green  v.  Howell  .. 


Haight  ads.  State,  New  York 
and  Erie  R.  K.  Co.,  pros....  428 

Haiffht  ads.  State,  Jersey  City 
and  Berfea  Plank  Koad 
Co,  proa. 448 


Ilaight  ads.  Stnta,  Jersey  City 

ami  Bergen  R.  R.  Co.,  pros .  447 

Haines  v.  Dubois 25£ 

Haley  ads.  Dow 354 

Hallam   ads.    State,   Gloucester 
Manufacturing      Company, 

pros 405 

Hallam  ads.  State,  Washington 
Manufacturing      Company, 

pros 421 

Hamilong  v.  Barnes 69 

Harrison  et  al.  ads.  City  of  Ho- 

boken 73 

Harwood  ads.  Smethurst 230 

Hinchman     attd     Hopper     ads. 

Rutau  255 

Hoagland  v.  Veghte 516 

Hoboken  City  Bank  ads.  Over- 
man       61 

Hoffman  ads.  Stale,  A}igar,  pr<«..  346 

Hotightalin  ads.  Graham  552 

Huwell  ads.  Green 326 

Howland  v.  Adrain 41 

Hii(i-<.n  County  adn.  State 137 

J. 

Janeway  v.  Skeritt 97 

Johnson  ads.  State 185 

Johnson  oils.  State,  Warne,  pros..  452 
Jones  v.  Vail ..   135 


Kaighn  and  Cooper  ads.  Coulter,     98 
Kirkpatrick  v.  C'ason 331 

L. 

Lawson  ads.  Tyler 120 

Lyons  and  Bennett  v.  Davis 301 

M. 

Manning  et  al.  ads.  Yawger 182 

Martin  ads.  Nevius. 465 

Mechanics  and  Traders  Bank  v. 

Bridge*  and  Boyle 112 

Meyer  y.  Beardaley 236 


CASES  REPORTED. 


XI 


Miller  ads.  State,  Morris  and  Es- 
sex Railroad  Co.,  pros 368 

N. 

Nevius  v.  Martin 46 

Newark  City  Bank  v.  Assessor, 

Fourth  Ward,  Newark 13 

New  York  and  Erie  Railway  Co. 

ads.  Aycrigg's  Ex'rs 46C 

New  York  and  Erie  Railway  Co. 

ads.  State 473 

Nixon  v.  Ruple 58 

Northern  Railroad  Company  ads. 
Telfer 188 

O. 

Ordinary  v.  Cooley  et  al 179 

Ordinary  v.  Cooley  and  West...  271 

Ortley  v.  Chadwick 35 

Overman  v.  Hoboken  City  Bank,     61 

P. 

Parker  v.  Thompson 311 

Parsell   v.   State,  Mann   et  al., 

pros 530 

Perrinev.  Serrell 454 

B. 

Randall  and  Morrell  v.  Roche 

and  Creede 220 

Read  v.  Barker 378 

Reford  v.  Cramer  et  al 250 

Reeder  ads.  Slack 348 

Reeves  ads.  Tice 314 

Richards    ads.    State,    Pavonia 

Ferry  Co.,  pros 266 

Roche  and  Creede  ads.  Randall 

and  Morrell 220 

Rogers  v.  Bridges  and  Boyle 112 

Ross  ads.  Adams  and  Traphagen,  505 
Rudderow   ads.   State,   Camden 

Water  Works  Co.,  pros 421 

Rudderow  ads.  State,  West  Jer- 
sey Ferry  Co.,  pros ib. 

Rnple  ads.  Nixon 58 

Rutan  v.  Hinchman  and  Hopper,  255 


Ryerson  ads.  State,  Van  Riper, 

pros 268 

S. 

Serrell  ads.  Perrine 454 

Sip  ads.  Taylor  and  Thomson...  284 

Skerritt  ads.  Janeway 97 

Slack  v.  Reeder 348 

Smethurst  v.  Harwood 230 

Smith  ads.  Cook 387 

Smith  ads.  State,  Allen,  pros 449 

Snedeker  ads.  State,  Snedeker, 

pros 80 

Snyder  ads.  Brain ; 56 

Stall  v.Fulton 430 

Staats  v.  Bergen 131 

State  v.  Babcock 29 

State  v.  Brooks..... 356 

State  v.  Delaware,  Lackawanna, 

and  Western  Railroad 473 

State  v.  Drake 422 

State  v.  Elkinton  and  Ferguson..  335 

State  v.  Hudson  county 137 

State  v.  Johnson 185 

State   v.   New   York   and   Erie 

Railway  Co 473 

State  v.  Stone 299 

State  v.  Williams 102 

State,  Allen,  pros.,  v.  Smith 449 

State,  Apgar,  pros.,  v.  Hoffman..  346 
State,  Camden  and  Philadelphia 

Ferry  Co.,  pros.,  v.  Denny..  421 
State,  Camden  Water  Works  Co., 

pros.,  v.  Rudderow 421 

State,    Doyle,  pros.,   v.   City  of 

Newark 303 

State,      Fennimore,      pros.,     v. 

Clothier 351 

State,  Gloucester  Manufacturing 

Co.,  pros.,  v.  Hallam 405 

State,   Hand,   pros.,  v.   City   of 

Elizabeth 365 

State,  Hoboken  and  Weehawken 

Horse  Railroad  Co.,  pros.,  v. 

City  of  Hoboken 225 

State,  Howeth,  pros.,  v.  City  of 

Jersey  City 93,  521 


XII 


CASES  REPORTED. 


State,  Jeney  City  and   Bergen 

Plank    Road  Co.,  pros.,  v. 

Haighl  ......................... 

State,  Jersey  City  and  Bergrii 

Railroad  Co.,  pros.,v.  Haight 
State,  Kaighn'*  Point  Ferry  Co., 

pro*.,  v.  Vantier  ............... 

State,  M  alone,  pros.,  v.  City  of 

Jeney  City  .........  '.  .......... 

State,  Malone,  pros.,  v.  Water 


State,  Mann  et  al.,  pros,  ads.  Par- 

sell  ................................. 

State,  Morris  and  Essex  Rail- 

road Co.,  pro*,  v.  Miller.... 
State,  New  York  and  Erie  Rail- 

way Co.,  pro*.,  v.  Haight.... 
State,  Parker,  pros.,  v.  City  of 

New  Brunswick  ............... 

State,  Pavonta  Ferry  Co.,  pros., 

v.  Richard*  .................... 

8tat«-,  Piard,  pros.,  v.  City  of 

Jci>ey  City  ................... 

State,  Piard,  pros.,  v.  Water  Com- 


State,  Snedeki-r,  pros,  v.  Suede* 

ker  ..............................  . 

State,  Vanliorn,  pros.,  v.  Town  of 

Bergen  .......................... 

State,  Van  Riper,  pros,  v.  Ryer- 

•on  ............................... 

State,  Warne,  pro*.,  v.  Johnson.. 
State,  Washington   Manufactur- 

ing Co.,  pnr..,  T.  IlaHam  ..... 
State,  West   Jer*ey    Ferry   Co., 

pro*.,  v.  Hud.  it-row  ........... 

State,  Winnor,  pro*.,  v.  I>onahay, 
Statr,  WondrufT,  pro*.,  v.  City  of 

Klixabclh  .........  ............... 

StoM  ad*.  State  ..................... 

flMpbia  v.  Crater  .................. 


443 
447 
421 
250 
247 
630 
368 
428 
395 
266 
148 
148 

80 
307 

268 
452 

421 

421 
4<)4 

176 
299 
257 


Taylor  and  Thomson  v.  Sip 284 

Telfer    v.    Northern     Railroad 

Company 188 

Thompson  ads.  Parker 311 

Thompson  and  Petty  v.  Conover,  329 

Tice  v.  Reeves 314 

Titus  &  Scudder  v.  Bowne 340 

Town  of  Bergen  ads.  State,  Van- 
horn,  pros -  307 

Town  of  Lambertville  v.  Clev- 

inger 53 

Township  of  Morris  ads.  Calla- 

han 160 

Tyler  v.  Lawson 120 

V. 

Vail  ads.  Jono 135 

Van  tier     ads.    State,    Kaighn's 

Point  Ferry  Co.,  pros 421 

Veghte  ails.  Hoaglaiul 516 

W. 

Wallen     v.     Assessor,     Fourth 

Ward,  Newark 13 

Water  Commissioners  ads.  State, 

Malone,  pros 247 

Water  Commissioners  ads.  State, 

Piard,  pro* 148 

WentroU  ads.  Wrege 212 

While  ails.  Beneficial  Society  of 

Burlington 313 

William*  ads.  State 102 

Wn-gc  v.  Westcott  212 


Yawger  T.  Manning  et  al. 


IBS 


A  TABLE  OF  CASES 

CITED  IN  THIS  VOLUME. 


A. 

Adams  v.  Jones 12  Pet.  207 69 

Adams  v.  Wordley 1  M.  &  W.  374 239,  241 

Addlson  v.  Overend 6  T.  E.  766- 129 

Alcock  v.  Alcock 12  Eng.  L.  &  E.  354 71 

Aldrich  v.  Kinney 4  Conn.  380 217 

Allen  v.  Newberry 21  How.  245 224 

Almy  v.  California 24  How.  169 '.  ..479,  499 

Apothecary  Co.  v.  Beatty Ryan  &  M.  159. 355 

Aubles  v.  Mason 11  Casey  261 ..' 438 

Ayersv.  Van  Lieu 2  South.  765 303 

Aymar  v.  Sheldon 12  Wend.  439 44 

B. 

Bank  of  Rutland  v.  Buck 5  Wend.  66 240' 

Bank  of  U.  S.  v.  Davis 2  Hill  451 46 

Barley's  Case Cro.  Eliz.  296 186 

Barbat  v.  Allen 7  Exch.  609 72 

Bark  Chusan 2  Story  461 222 

Barker  v.Dixie , Cas.  Temp.  Hard.  264 70 

Batthews  v.  Galindo 3  C.  &  P.  238 70' 

Seals  v.  Peck 12  Barb.  250 51 

Bentleyv.  Cooke 3  Doug.  422 70 

Bessell  v.  Briggs 9  Mass.  462 218 

Birbeck  v.  Ferry  Boats 17  Johns.  54 221 

Blake  v.  Midland  Railway 18  Q.  B.  93 200 

Blanchard  v.  Brook 12  Pick.  67 509 

Bloxam  v.  Hubbard 5  East.  407 129 

Boquav.  Ware 1  Halst.  151 232 

Boyce  v.  Edwards 4  Pet.  Ill 69 

Boydell  v.  Drummond 11  East.  142. 403 

Boylan  ads.  Meeker 4  Dutch.  309 55 

Bracegirdle  v.  Heald 1  B.  &  A.  722 403 

Bradford's  Appeal 5  Casey  513 438 

Brashford  v.  Buckingham Cro.  Jac.  77,  205 440 

Broadwell  v.  Getman 2  Denio  87 403 

Broderick  ads.  Ames 3  Harr.  297 232 

Brown  v.  Butchers  Bank  6  Hill  443 260 

xiii 


xiv  CASES  CITED. 


Brown  T.  Man-land >  12  Wheat.  419 479,  492 

Brown  v.Selwin Cas.  Temp.  Talb.  210 468 

Brown  r.Selwin Bro.  Parl.  Cases  607 468 

Buckler  T.  Collier 1  Salk.  114 440 

Bulli*  T.  Giddins. 8  Johns.  82 220 

Borge«  v.  Vreeland 4  Zab.  74 46,  51,  263 

Burrell  T.  Bull 3  Sandf.  Ch.  15- 71 

O. 

Caldwell  T.  Fifield 4  Zab.  152 332 

Carrigan  r.  Morrison 2  Mete.  381  69 

Campfield  T.Johnson 1  Zab.  83 55 

Carrol  T.Upton 2  Sand.  Sup.  Ct  172 44 

Carrol  T.  Upton 3  Corns.  272 44 

Carron  T.  Martin „  2  Dutch.  600 ..    60 

Carter's  E^re  v.  Rutland  1  Hayw.  2 156,  159 

Cue  of  Beverlian  et  al 4  City  Hall  Rec.  138 363 

Cayuga  Bank  v.  Worden 1  Corns.  417 44 

Caruga  Bank  T.  Worden 2  Seld.  19- 44 

Central  Bank  T.  Peterson 4  Zab.  668 333 

Central  R.  R.  Co.  v.  Moore 4  Zab.  830 461 

Chambers  T.  Wambaugh 4  Dutch.  531- 55 

Cherry  T.  Ileming 4  Ex.  631 403 

Clark  T.  Cock 4  East.  57 69 

Coffin  T.  Mnrril.. 22  N.  H.  356 441 

Collins  v.  Loffus 10  Leigh  10 166 

Cooler  *.  Philadelphia 12  How.  299 „  478 

Coolidge  T.  Parson 2  Wheat.  66 69 

Cora.  T.  Harrington. 3  Pick.  28 106 

Cora.  T.  McGcorge 6  B.  Mon.  21 110 

OMMtodr  T.  Bayford 12  Smed.  &  M.  369 441 

Cook  T.  Bute- 4  Zab.  486 187 

D. 

Dagley  T.  Tolferry 1  P.  Wins.  285 567 

DaTU  T.  Dinwoody 4  T.  R.  678 70 

Dar»  T.  Hendrickson 3  Gr.  R.  481 385 

Den  T.  Cuhherly 7  Halst.  308 468 

Duborough  T.  Bidleman- Spenrer  275- 351 

DUwmogh  T.  Bidlrman 1  Ztib.  677 351 

DizonV  Adtu'r  v.  Diion -  18  Ohio  15-  441 

DMT.  Martin  4  T.  R.  39 613 

Dooellan  T.  Bx-ad- 3  B.  &  Ad.  889 403 

Durant  r.  Jrrwy  City 1  Dutch.  309- 367 

E. 
E.  A  N.  K.  Railroad  Co.  T.  Casey...-  26  Penna.  301 870 


CASES  CITED.  xv 


Erwin  v.  Smaller 2  Sandf.  S.  C.  340 70 

Ex  parte  Jennings 6  Wend.  518 . 338 

Ex  parte  Bogers 7  Wend.  526 338 

P. 

Farnham  v.  Ingham 5  Ver.  114 239 

Farrel  v.  Perry 1  Hayw.  2 156,  159 

Faulkner's  Case 1  Sandf.  248... 105 

Fenton  v.  Emblers 3  Burr.  1278 403 

Finch  v.  Gregory's  Ex'rs 25  Wend.  469 356 

Fountain  v.  Smith 2  Sid.  128 440 

Fordv.Aiken 4  Kich.  133 ...156,  159 

Ford  v.  Monroe 2  Wend.  210.. 201 

GK 

Gamber  v.  Gamber 6  Harris  366 438 

Garrabrant  v.  Sigler 1  Halst.  Dig.  507,  §  6 569 

Gater's  Ex'rs  v.  Madeley 6  M.  &  W.  423 441 

Gibbons  v.  Ogden 9  Wheat.  1 479,  492 

Gibson  v.  Powell 6  Miss.  60 262 

Gilleland  v.  Rappleyea 3  Green.  145 546 

Gilmore  v.  Lewis 4  Zab.  223 219 

Goodwin  v.  McCoy 13  Ala.  261 239 

Gregory's  Case 6  Eep.  20 116 

H. 

Haines  v.  Campion 3  Harr.  51 250,  306 

Hall  v.  The  State 4  Harr.  145 109 

Hall  v.  Young 37  N.  H.  146,437 441 

Hamilton  v.  Chevallier 3  Harr.  434 385 

Hand  v.  Hoffman 3  Halst.  71 468 

Handley's  Lessee  v.  Anthony 5  Wheat.  374 33 

Harcourt  v.  Meeks 5  Mod.  77 „  232 

Hardcastle  v.  State 3  Dutch.  352 405 

Harman  v.  Com..... 12  S.  &  E.  71 187 

Harrison  v.  Buscoe 15  M.  &  W.  251 46 

Hanson  v.  Stetson - 5  Pick.  506 239 

Hartley  v.  Case 4  B.  &  C.  339 44,    51 

Hasbrouck  v.  Vandervoort 4  Sandf.  S.  C.  599 70 

Hasbrouck  v.  Vandervoort 5  Seld.  157 71 

Hawkesworth  v.  Showier 12  M.  &  W.  45 71 

Haynes  v.  Birks 3  Bos.  &  Pul.  599 46 

Heaverin  v.  Donnell 7  Smedes  &  Mar.  244 239 

Heirs  of  Holmes  v/Adm'r  of  Holmes,  28  Vt.  356 441 

Hick  v.  Keats 4  B.  &  C.  71 158 

Hill  v.  Hunt Spencer  477 343 


xvi  CASES  CITED. 


England  T.  Veghte 3  Zab.  92 518 

Hoar*  v.  Graham -  3  Camp.  57 239 

Hoboken  v.  Harrison 1  V room  73 181 

Hoby  v.  Roebuck 7  Taunt  157 403 

Hodge.  T.  Shouler 22  X.  Y.  118 45 

Holdfast  T.  Dowling 2  Str.  1253- 71 

Hollowell  v.  Spinner 4  Imlell  165- 156,  159 

Holme*  T.  Jersey  City -  1  Beas.  299 96,  524 

Home  Insurance  Co.  T.  Green 19  N.  Y.  f>19 44,    51 

Howackv.  Rogers 8  Paige  229,  241 70 

Howard  v.  IT« 1  Hill  263 -    46 

Howland  Y.  Adrain  „ 1  Vroom  41 261 

Huncke  T.  Francis 3  Dutch.  55 258 

I. 

In  the  matter  of  Abraham  Coursen's 

wi!l_ 3  Green  Ch.  412 569 

In  re  Brown.- 2  Story  502 290 

J. 

Jackson  r.  Miller- 1  Dutch.  93 70 

Jackaon  T.  Sill -  11  Johns.  201 468 

Jaduon  T.  Steamboat  Magnolia. 20  How.  393- 222 

Jersey  City  v.  Morris  Canal  A  B.  Co-  1  Bra*.  548 526 

Jetine  T.  Ward 2  Stark.  326- 66 

Joel  T.  Morrinon 6  C.  &  P.  501 463 

Johnson  v.  Coiling* -  1  East  98 69 

John«on  T.  Martinus 4  Halst  144 „  239 

Jon«  T.  Pope 1  Saund.  38 219 

K. 

Kwoe  T.  Macey 4  Bibb  35 155,  158 

Keeny  r.  Good 9  Harris  354 438 

Kilgor*  T.  Bulkley 14  Conn.  362 -    44 

King  T.  Moore.- 3  B.  &  Ad.  184 „  105 

Kin*  T.  Pea»e 4  B.  &  A.  30 203 

King  v.  Rosier -  1  B.  A  C.  72 -  105 

King  T.  8trm« 6  T.  R.  Ml 359 

King  T.Taylor 3  B.  A  C.  72 105 

King  v.  Yorluhire 2  Ko*t.  342 138 

Kip  v.  Chamberlain -  Spencor  656 343 

KuUavyer  v.  Knnia. 3  Dutch.  372 308 

L. 

L*ng<!alo  r.  Trimmer 15  Kant.  291.- 46 

Lftngfurth  Bridge  Can* Cro.  Car.  W>....  ..  138 


CASES  CITED.  xvii 


License  Cases 5  How.  504 479,  495 

Ludlamv.  Broderick 3  Gr.  276 460 

Lyon  v.King 11  Mete.  411 „  403 

M. 

Maguire  v.  Card , 21  How.  249 224 

Mann  v.  Mann 14  Johns.  1 468 

Manning  v.  Kandolph 1  South.  145 «  403 

Manyv.  Noyes 5  Hill  34 221 

Martyn  Page's  Case Cro.  Car.  332 186 

McCulloch  v.Maryland 4  Wheat.  316 17,  492 

Mason  v.  Hunt Doug.  297 68 

McKnight  v.  Lewis 5  Barb.  681 44 

Mellesh  v.  Eippen 11  Eng.  L.  &  E.  599 52 

Mech  antes  Bank  v.  Bridges 1  Vroom  112 371 

Mendhara  v.  Losey Penn.  347..., 165 

Merchants  Bank  v.  Spicer 6  Wend.  445 ...260,  293 

Merriam  v.  Eailroad  Co 20  Conn.  354 72 

Merrick  v.  Avery 14  Ark.  378 222 

Middletown  v.  Fowler 1  Salk.  282 463 

Mills'  Case 5  City  Hall  Eec.  78 363 

Mills  v.  Bank  of  TL  S 11  Wheat.  431 44 

Miners  Bank  v.  II.  S 1  Greene  (Iowa)  553 371 

Mohawk  Bankv.  Broderick 10  Wend.  304 .....290,  295 

Mohawk  Bank  v.  Broderick 13  Wend.  134 290,  295 

Montfort  v.  Vanarsdalen 2  South.  686 312 

Moore  v.  Central  E.  B.  Co 4  Zab.  268,  853 199 

Moore  v.Hamilton 4  Zab.  532 549 

Moses  v.  Thornton 8  T.  E.  307 354 

4Moule  v.  Brown 4  Bing.  N.  C.  266 291 

'Moulin  v.  Insurance  Co 4  Zab.  223 219 

Murray  v.  Judith 6  Cowen  490 293 

Myer  v.  Hollingsworth 2  Dutch.  187 73 

N. 
Newark  City  Bank  v.  Assessor 1  Vroom  13 117 

O. 

O'Connor  v.  Majoribanks 4  Man.  &  Gr.  435 71 

Oliver  v.  Phelps Spencer  180 460 

Owen  v.Arvis 2  Dutch.  23 129 

P. 

Park  v.  Mayor  of  New  York 3  Corns.  489... 201 

Partridge  v.  Davis 20  Vt.  499 

Passenger  Cases 7  How.  464 477,479,  495 

Paterson  v.  Everard 2  Chitty  E.   239 219 


xviii  CASES  CITED. 


Pendletoo  T.  Franklyn 3  Seld.  508 221 

Pennsylvania    v.     Wheeling,      Ac, 

Bridge  Co 13  How.  518- 496 

People  v.  Com.  of  Taxes 23  N.  Y.  192 18 

People  y.  Erwin  &  Clark 4  Denio  129 -  106 

People  v.  Jackson 2  Hill  92 186 

People  T.  Merccin 8  Paige  47 -  70 

People  v.  White 22  Wend.  176 186 

Phillipsburg  Bank  v.  R.  R.  Co 3  Dutch.  206 -  477 

Pierson  T.  Dunlop Cowp.  571 -  69 

Powell  T.  Waters 17  Johns.  176 240 

Prat  et  ux.  v.  Taylor. Cro.  Eliz.  61 ~  440 

Price  v.  Sessions....                           ..  3  How.  624 441 


Quicksall,  Adm'r,  v.  Quicksall 2Penn.457 312 

Quinn  T.  Moore 15  N.  Y.  534.. 200 

R. 

Randolph  v.  Montfort 1  Harr.  226 184 

Rawdon  v.  Rcdfi<  Id 2  Sand.  S.  C.  178 -     47 

Reedy  v.  ScLxa*  2  Johns.  C.  337 44 

Regina  v.  Inliah.  of  Wilts 6  Mod.  307 143 

Rex  T.  Bigg S  P.  Wins.  419,  428 262 

Rex  v.  Button 11  A.  &  E.  (N.  S.)  929 Ill 

Rex  T.  Cliviger.. 2T.  R.  263 71 

Rex  T.  Dawson ..  3  Stark.  62 187 

RexT.  Wol»i«r Str.  1137 186 

Richardaon.  Adm'r,  v.  Morril 32  Vt.  27  441 

Riddbrd  v.  Ridge 2  Camp.  537 291. 

Ridgway  v.  English. 2  Znh.  409 155 

Ridout  T.  Brwtow 1  Tyrw.  84 239 

Rinnrll  v.  Sampnyo 1  C.  A  P.  255 462 

Robinson  T.  Reynolds 2  Q.  B.  196 240 

Bobson  T.  Bennett 2  Taunt.  388 46,  63 

Rochester  Bank  v.  Gould 9  Wend.  279 51 

ROM  T.  Adams 4  Dutch.  160 436 

Uunyon  T.  Central  R.  R.  Co 1  Dutch.  556 199 

Pss»lll  T.  Karlr 13  Ala.  131 488 

Ros»tll  v.  Wiggins 2  Story  237 69 

8. 

Saddle  Rirer  T.  Colfiut  1  HalsL  115 165 

8«yr«  T.  Flotimoy 3  Kelly  (O.)  650 441 

8chimin*lprnni<  h  ».  Bayard 1  Pel.  284.. 69 

SroO  T.  Bealty  3  Zah.  2-')9 „  660 

Bcdgvworth  v.  Ovcrt-nd 7  T.  R.  279 129 


CASES  CITED.  xix 


Sei pie  v.Elizabeth 3  Dutch.  410 78 

Sheldon  v.  Clark 1  Johns.  513 355 

Shelley's  Case 1  Eep.  93 512 

Shelton  v.  Braithwaite 7  M.  &  W.  436 45 

Sheltonv.  Braithwaite 8  M.  &  W.  252 45 

Sinnot  v.  Davenport 22  How.  227 496 

Slaughter's  Adm'r  v.  Tutt 12  Leigh  156 156 

Sleath  v.  Wilson 6  C.  &  P.  607 463 

Smick  v.  Opdycke 7  Halst.  347 253 

Smith  v.  Boulton 1  Hart  &  Wain  3 52 

Smith  v.  Commonwealth 6  B.  Mon.  21 110 

Smith  v.James 20  Wend.  192 291 

Smith  v.  Knox 3  Esp.  E.  46  240 

Smith  V.Montgomery 5  Wend.  504 159 

Smith  v.  Smith 4  Dutch.  208 256 

Smith  v.  Wertall 1  Ld.  Eay.  316 403 

Snow  v.  Curtis 2  Mich.  238 51 

Snyder  v.  Snyder 6  Binn.  483 70 

Solarte  v.  Palmer 7  Bing.  530 51 

Spaulding  v.  Alford 1  Pick.  33 355 

Spencer  v.  Bank  of  Salina 3  Hill  520 48 

Spring  v.  Lovett 11  Pick.  416 239 

Stapleton  v.  Crofts 18  Q.  B.  367. 71 

State  v.Atkinson 3  Dutch.  420 534,  543 

State  v.  Bentley 3  Zab.  532 20,  370 

State  v.  Bergen 1  Zab.  344 547 

State  v.  Bergen 5  Dutch.  266 308 

State  v.  Brannin 3  Zab.  484 20,  115 

State  v.  Cake 4  Zab.  517 451 

State  v.  City  of  Hudson 5  Dutch.  475 306 

State  v.  Davis 1  Dutch.  386 33 

State  v.Elmer Coxe  55 542 

State  v.  Everit 3  Zab.  379 250,  306 

State  v.  Gibbons 1  South.  40 427 

State  v.  Guild 5  Halst.  180 362 

State  v.  Hamilton  et  al 5  Halst.  190 234 

State  v.  Holliday 3  Halst.  205 338 

State  v.  Jersey  City 2  Dutch.  444 306 

State  v.  Jersey  City 5  Dutch.  441 150,  525 

State  v.  Kingsland 3  Zab.  85 250,  306 

State  v.  Miller 3  Zab.  383 55 

State  v.  Minton 3  Zab.  529 115,  370 

State  v.  Newark 1  Dutch.  400..... 306 

State  v.  Ten  Eyck, 3  Harr.  373 .' 250 

State  v.  Van  Buskirk 1  Zab.  87 547 

State  v.  Vanderveer 1  Dutch.  233 547 

State  v.  Van  Winkle 1  Dutch.  73 405 

State  v.  Water  Commissioners 1  Vroom  247 306 


CASES  CITED. 


State  v.  Willingborough  Road Core  128  542 

State  v.  \Vomlw»nl... ~ 4  Halst.  21- 250,  306 

Steams  v.  Adm'rof  Stearns 30  Vt  213 441 

Stein  T.  Bowman 13  Pet,  221 71 

Stoke*  v.  Middleton 4  Dutch.  32 576 

Stratton  T.  Breath 7  M.  &  W.  436- 52 

Sosquebanna  Bridge  OO.T.  Evans 4  Wash.  C.  C.  480 239 

Qua  LI  Bank  T.  Baldwin...,              ,.  2  Harr.  487...                        46 


Talmadge  v.  R.  A  S.  R.  R.  Co 13  Barb.  498- 403 

Tanner  v.  Trustees  of  Albion 6  Hill  121- 105 

Taylor  r.  Caryl „  20  How.  583 222 

The  Globe _  2  Blatch.  C.  C.  430 222 

The  Virgin 8  Pet.  538 222 

Thomas  T.  Oaborn 19  How.  22 222 

Tiley  T.  Cowling 1  Ld.  Ray.  744   -     71 

Toplyy.Toply 7  Casey  328 428 

Town  of  Wigan  v.  Pilkington 1  Keble  597 282 

Trustees  T.  McFarlan -  2Green471 55 

Tucker  T.  Seaman's  Aid  Soc- 7  Meto.  189 468 

Turner  v.  Leach 4  B.  &  A.  451 46 

Tyler  T.  Hand -  7  How.  581 78 

U. 

United  States  T.  Bradley 10  Pet  361 78 

United  Slates  v.  Tingey -  5  Pet  129 -    78 

V. 

Van  Schoick  T.  Canal  Co S|>encer249 518 

Voorhees  T.  Bank  of  U.  8 10  Pet.  472 576 

W 

Wader.  Potter -  2Grwn278 312 

Walker  r.  Blackwoll 1  Wcn.i.  657- 221 

Wai  lace  v.  Ajrryetal 4  Mason  118,336 291 

Wallace  r.  Cnil-  4Zal>.  002 254,  385 

Walking  v.  Kirkpatrick  -  2  Dutch.  84 239 

Wellcr  r.  Baker 2  Wils.  414 410 

Wnrtnn  v.  City  of  Charlcnton 2  IVt.  449 „  Ifl 

Williams'  Cane 1  rjtv  ||n||  Rec.  149 3(18 

WiUon  v.  film-kbinl  ("reck  Co -  2  Pet.  245 _  498 

Windham  v.  Chetwynd  1   Burr.  428 70 

Wire  v.  Browning Spencer  304 -  343 


CASES  CITED.  xxi 


Woodbridge  v.  Spooner 3  B.  &  A.  223 239 

Woodruff  v.  Daggett Spencer  526 50 

Woolwich  v.  Forrest Penn.  115 78,  181 

Wright  v.  Green «  6  Halst.  334. 546 

Y. 

Yarborough  v.  Bank  of  England 16  East  6 262 

Youngs  v.  Lee 2  Kern.  554.................. 51 


CASES  DETERMINED 

IN   THE 

SUPREME  COURT  OF  JUDICATURE 

OF   THE 

STATE  OF  NEW  JERSEY, 
AT  JUNE  TERM,  1862. 


THE    NEWARK    CITY    BANK    v.    THE    ASSESSOR    OF    THE 
FOURTH  WARD  OF  THE  CITY  OF  NEWARK. 

CHARLES  A.  WALLEN  v.  THE  SAME.' 

1.  The  bonds  issued  by  this  state  under  the  act  of  1861  (Laws  1861,  p. 
554,)  are  exempt  from  taxation  when  held  by  individuals  or  corpora- 
tions. 

2.  The  stocks  and  securities  issued  by  the  United  States  under  the  power 
to  borrow  money  are  exempt  from  state  taxation  in  the  hands  of  indi- 
viduals or  corporations. 

3.  Stocks  in  foreign  corporations,  held  by  individuals  resident  in  this 
state,  are  personal  estate  within  this  state,  and  subject  to  taxation. 

4.  Corporations  are  entitled  to  have  deducted  from  the  amount  of  their 
capital  stock  paid  in,  and  accumulated  surplus,  the  amount  of  the 
bonds  of  this  state  and  the  stock  and  public  securities  issued  by  the 
United  States  owned  by  them  at  the  time  of  assessment. 


On  certioran.     In  matter  of  assessment. 

Argued  before  the  CHIEF  JUSTICE  and  Justices  ELMER, 
VREDENBURGH,  and  VAN  DYKE. 

For  the  plaintiff,  J.  P.  Bradley  and  A.  0.  Zabrishie. 

For  the  defendants,  Frelinghuysen,  Attorney  General. 
VOL.  i.  A  13 


14  NEW  JERSEY  SUPREME  COURT. 

Newark  City  Bank  v.  The  Assessor. 

CHIEF  JUSTICE.  These  eoftoram  have  been  regularly 
issued  and  returued  to  this  court,  and  have  brought  before  us 
the  records  of  assessments  just  made  against  the  respective 
plaintiffs.  The  duplicates  still  remain  in  die  hands  of  the 
assessor,  the  time  for  their  return  to  the  collector  not  having 
arrived.  iTIiere  has,  of  course,  been  no  time  for  an  appeal  to 
the  commissioners  of  ap|>eal  to  correct  the  errors  complained 
of.  No  motion  was  made  to  dismiss  these  certioraris  as  im- 
providently  and  prematurely  issued ;  on  the  contrary,  they 
have  been  elalx>rately  argued  by  the  counsel  of  the  respective 
parties  upon  the  merits,  for  the  avowed  purj>ose  of  obtaining 
at  this  time,  before  the  assessments  are  completed  throughout 
the  state,  the  opinion  of  this  court  upon  the  important  ques- 
tions involved,  to  avoid  the  great  public  embarrassment  that 
might  ensue  if,  at  this  time,  assessments  should  be  made  upon 
erroneous  principles,  and  be,  for  that  cause,  generally  reversed. 
Under  these  circumstances,  we  are  not  inclined,  of  our  own 
motion,  to  dismiss  these  suits,  but  shall  proceed  to  disjxxse  of 
them  upon  their  merits. 

The  cases  were  heard  together,  and  as  they  involve  the  same 
points,  it  will  l>e  convenient  to  consider  them  at  the  same  time. 

In  the  City  Bank  cast*,  the  assessor  returned  that  he  had 
assessed  that  corporation — 

On  its  capital  stock,         .         .         .         .         .  $350,000  00 
On  its  accumulated  surplus,         .        .        .          60,083  11 


Total, $410,083  11 

That  the  bank  claimed  a  reduction  of  the  same,  because,  as 
WI8  shown  and  proved  to  the  assessor,  the  capital  and  accu- 
mulated -iii-plii-  comprised,  among  other  things,  United  States 
5  per  cent.  Ixmdt* — 

Due  in  1865, $5,000  00 

tJnitnl  States  6  |KT  cent.  1  year  certificates,  122,000  00 

United  States  7  3-10  per  cent,  treasury  notes,  73,000  00 

Bonds  of  the  slate  of  New  Jersey,  under  act  of 

February  16th,  1801,         .         .         .         .  7,000  00 

Total, $207,000  00 


JUNE  TERM,  1862.  15 

Newark  City  Bank  v.  The  Assessor. 

5~ 

AVliich  deduction  the  assessor  disallowed,  as  contrary  to  law. 

In  the  Wallen  case,  the  assessment  is — 
Upon  real  estate,         .  .         .         .       $20  00 

Personal  estate,       . ,       .         .         .         .         .  105  00 

Total,      '  .        .        .         .         .         .         .       $125  00 

The  personal  estate  consisted  of — 
Bonds  and  mortgages,  ....        $3,500  00 

20  shares  of  capital  stock,  Ocean  Bank,  city  of 

New  York,  2,000  00 

10  shares  New  York  Central  Railroad,  .         .  1,000  00 

United  States  demand  notes  under  the  act  of  con- 
gress, February  25th,  1862,   ....      2,000  00 
New  Jersey  state  bonds,  under  act  of  May  10th, 

1861, 2,000  00 

$10,500  00 

The  following  points  are  involved,  and  must  be  decided  : 

1.  Are  the  bonds  of  this  state  in  the  hands  of  Wallen 
taxable  ? 

2.  Are  the  United  States  bonds  and  notes  in  his  hands  tax- 
able? 

3.  Are  the  railroad  and  bank  stocks  held  by  him  taxable, 
being  stocks  of  corporations  without  this  state  ? 

4.  Is  the  bank  taxable  for  all  or  any  of  the  items  disal- 
lowed as  deductions  from  the  capital  stock  and  surplus,  viz.} 
the  New  Jersey  state  bonds  and  United  States  bonds  and 
notes  ? 

The  act  of  March  28th,  1862,  introduced  into  our  system 
of  taxation  extensive  and  radical  alterations,  for  the  purpose 
of  more  equally  distributing  upon  persons  and  property  the 
increased  burthen  of  taxation,  rendered  necessary  by  the 
war  for  the  preservation  of  the  Union.  The  main  design  of 
these  alterations  was  to  extend,  as  far  as  practicable,  the 
list  of  ratables,  and  to  diminish,  as  much  as  possible,  the 
number  of  non-taxable  items  composing  the  wealth  of  indi- 
viduals and  corporations,  and  in  some  instances  to  change 


16  NEW  JERSEY  SUPREME  COURT. 


Newark  City  Bank  v.  The  Aweaaor. 


the  mode  of  assessing  that  wealth,  so  as  to  roach  it  with  more 
certainty  than  heretofore. 

One  of  the  most  striking  alterations  is,  that  taxing  the 
corporations  themselves,  instead  of  the  stock  in  the  hands  of 
the  .-tockholilers,  when  they  are  corj>orations  created  by  the 
State,  and  taxing  their  business  done  here,  or  capital  em- 
ployed here,  when  existing  under  charters  granted  by  other 
•tab  -. 

Out  of  these  alterations  spring  more  or  less  of  the  diffi- 
culty to  be  found  in  the  solution  of  the  questions  presented  for 
decision. 

As  to  the  first  point,  the  taxability  of  the  bonds  of  this 
state,  there  can  be  no  doubt.  By  the  act  authorizing  their 
issue  they  are  expressly  exempted  from  taxation,  for  the  pur- 
pose of  increasing  their  negotiability,  and  have  been  issued 
bearing  on  their  face  a  statement  that  they  are  free  from  taxa- 
tion. 

The  express  contract  of  the  state,  that  they  shall  be  ex- 
empt (Laics  of  1861,  p.  555,)  is  enough  to  settle  this 
question ;  and  even  as  to  those  issued  after  the  passage  of 
the  act  under  consideration  the  same  rule  must  prevail. 
This  exemption  of  these  bonds  was  not  intended  to  be 
affected  by  the  general  words  of  the  act  of  1862.  New 
Jersey  has  always  preserved  unsullied  her  good  faith,  when- 
ever it  has  been  pledged,  and  her  courts  will  never,  by  any 
nice  refinement,  open  a  way  by  which  it  may  IKJ  violated. 

2.  The  bonds  and  other  evidences  of  debt  issued  by  the 
United  States,  and  held  by  Wallun,  are,  in  his  hands,  exempt 
from  taxation  by  -tat-  authority. 

The  case  of  Weston  and  ollierti  v.  City  of  C/uirknton,  2  Pd. 
449,  is  a  decision  directly  ujx»n  this  point,  and,  in  my  judg- 
ment, must  control  this  cast?.  That  derision  was  not  made 
by  the  court  to  turn  ii|>on  the  point,  whether  the  taxation 
attempted  by  state  authority  was  di-criminating  against  the 
bonds  of  the  United  Slates,  or  whether  they  were  taxed  in 
the  aggregate  of  the  taxpayer's  wealth.  In  the  opinion  of 
Chief  Justice  Marshall,  the  exemption  of  these  bonds  from 


JUNE  TERM,  1862.  17 

Newark  City  Bank  v.  The  Assessor. 

taxation  by  state  authority  was  made  to  rest  upon  the 
ground  that  they  were  the  means  employed  by  congress, 
under  the  expressly  granted  power  to  borrow  money,  to  effect 
that  object ;  that  a  tax  upon  them  was  in  substance  and  effect 
a  state  tax  upon  the  exercise  of  one  of  the  functions  of  gov- 
ernment. 

The  tax  in  question  is  a  tax  upon  the  contract  subsisting 
between  the  government  and  the  individual;  it  bears  di- 
rectly upon  that  contract,  while  subsisting  and  in  full  force. 
The  power  operates  upon  the  contract  the  instant  it  is  framed, 
and  must  imply  a  right  to  affect  that  contract.  In  the  exer- 
cise of  the  power  to  borrow  money,  the  government  applies 
directly  to  its  citizens  for  the  loan,  without  the  intervention 
of  state  authority ;  it  seeks  no  aid  from  the  state,  and  is  ex- 
empted from  all  control. 

For  this  purpose  it  is  supreme,  and  may  make  such  con- 
tract as  congress  authorizes  with  the  public  creditor.  It  is 
essential  to  its  exercise  that  the  power  should  be  entirely 
untrammeled  by  any  burthen  thrown  upon  it  by  state  au- 
thority. 

The  same  rule  which  would  permit  the  credit  of  the 
United  States  to  be  taxed  inter  alia  would  logically  permit 
its  taxation  by  itself.  It  is  not  taxable  because  it  does  not 
exist  by  state  permission,  and  is  not  protected  by  state  laws, 
or  subject  to  state  sovereignty,  by  state  legislation  or  other- 
wise. MoOuttoch  v.  The  State  of  Maryland,  4  Wheat.  316. 

To  say  that  if  only  taxed  in  the  bulk  of  the  wealth  of  an 
individual,  at  the  same  rate  as  the  rest  of  his  property,  there 
is  no  discrimination  against  the  bonds,  and  that  therefore 
the  power  to  borrow  money  is  not  interfered  with  or^  in  any 
way  crippled,  does  not  touch  the  principle  upon  which  the 
exemption  of  the  national  credit  from  state  taxation  rests.  It 
only  disposes  of  the  argument  ab  inconvenienti  against  such 
taxation.  It  cannot  be  taxed  at  all  because  it  is  the  con- 
tract of  the  national  government,  which,  as  to  this,  is  para- 
mount to  that  of  the  state  over  the  same  citizens.  A  taxa- 
-tion  of  the  contract  is  an  indirect  taxation  of  the  parties  to 


18  NEW  JERSEY  SUPREME  COURT. 

Newark  City  Bank  v.  The  Assessor. 

it  A  state  cannot  tax  a  function  of  the  federal  government, 
whether  dormant  or  in  exercise,  or  the  necessary  means  for 
its  exercise,  whether  a  parol  contract  or  one  under  seal.  The 
inexorable  law  of  political  economy  is,  that  the  taxation  of  a 
sura  of  money  loaned  falls  ultimately  upon  the  borrower. 
The  money  loaned  is  in  the  federal  treasury,  the  lemler  and 
his  assigns  have  nothing  but  a  voucher  showing  this  fact. 
It  is  difficult  to  assign  any  better  reason  why  a  sum  of 
money  due  the  government  from  the  collector  of  a  port  or  of 
direct  taxes  may  not  l>e  taxed  by  the  state  as  part  of  the 
private  property  of  the  collector.  It  is  not  taxable  because 
it  is  the  money  of  the  federal  government,  and  not  that  of  the 
collector.  If  the  state  may  take  it  by  the  taxing  power,  it 
may  take  the  whole  or  part  at  discretion. 

It  needs  no  argument  to  prove  that,  on  such  a  theory,  the 
existence  of  the  federal  government  would  be  imperilled.  It 
might  be  destroyed  without  treason  or  rebellion. 

I  am  not  satisfied  with  the  reasoning  of  Denio,  Judge, 
in  The  People,  v.  The  Commissioners  of  Taxes  and  Assess- 
ments, 23  X.  Y.  Rep.  192,  in  which  the  majority  of  the  court 
concurred,  holding  United  States  bonds  taxable,  for  the  rea- 
sons I  have  already  given.  The  positions  I  have  stated  were 
not,  in  Weston  v.  City  of  Chartato*,  obiter  dichi;  they  were 
the  very  grounds  of  the  decision. 

The  discriminating  mind  of  Marshall  could  not  have  failed 
to  |>erccive  that  the  tax  in  that  case  was  not  one  U|>oii  United 
Suites  stock  only,  but  upon  all  bonds  of  a  MM* tain  grade, 
including  these.  He  never  would  have  been  content  to  put 
the  decision  of  that  case  on  such  narrow  grounds. 

That  cannot  be  a  sound  rule  which  makes  the  thing  taxa- 
ble when  taxed  with  the  rot  of  a  man's  property  of  every 
kind,  but  untaxable  when  only  taxed  in  common  with  a  part. 
The  court  could  not  determine  how  universal  a  tax  law  must 
be  to  be  ojM-rative,  or  how  partial  to  l>e  inoperative,  nor  in- 
quire into  the  intent  with  which  the  tax  wan  imposed.  The. 
Supivni?  Court  of  the  United  States  had  no  alternative  except 
to  aay  the  federal  bonds  cannot  be  taxed  at  all,  or  that  to  tax 


JUNE  TERM,  1862.  19 

Newark  City  Bank  v.  The  Assessor. 

them  was  unlawful,  unless  all  other  property  was  taxed  at 
the  same  time,  or  when  the  design  was  to  cripple  the  borrow- 
ing power  of  the  federal  government,  which  would  lead,  upon 
a  question  of  constitutional  law,  into  a  vexatious  inquiry  into 
a  mere  intention,  which  could  never  be  ascertained. 

In  addition  to  this  view  of  the  case,  which  seems  conclu- 
sive, if  the  national  credit  in  the  hands  of  an  individual  is  not 
of  itself,  from  the  nature  of  things,  free  from  state  taxation, 
it  is  clearly  in  the  power  of  congress  to  make  it  so,  either  in 
the  act  authorizing  the  loan,  or  in  a  subsequent  act.  The 
power  to  make  the  loan  carried  with  it  the  power  to  make 
all  laws  necessary  for  its  success  and  protection  when  made. 
Congress  must  have  the  power  to  define  the  relations  of  citi- 
zens to  the  loan,  and  to  exempt  it  from  all  state  interference. 
The  right  of  congress  to  exempt  a  national  loan  from  taxa- 
tion would  seem  as  clear  as  that  of  a  state  to  exempt  its  own. 
Both  should  have  that  power  for  very  obvious  reasons — the 
existence  and  exercise  of  the  power  might  be  vital  to  the  suc- 
cess of  the  loan. 

By  the  act  of  25th  of  February,  1862,  passed  since  the  de- 
cision of  the  New  York  Court  of  Appeals,  and  probably  in 
view  of  it,  to  correct  the  evils  flowing  from  it,  congress  has, 
in  the  clearest  possible  language,  declared  that  all  stocks, 
bonds,  and  other  securities  of  the  United  States,  held  by  in- 
dividuals, corporations,  or  associations  within  the  United 
States,  shall  be  exempt  from  taxation  by  or  under  state  au- 
thority. 

If,  therefore,  these  bonds  and  securities  have  been  taxed  in 
the  hands  of  Wallen,  he  is  entitled  to  relief. 

By  act  of  March  28th,  1862,  under  consideration,  it  clearly 
appears  that  the  bonds  and  securities  are  designed  to  be  taxed 
as  personal  estate,  and  that  the  tax  is  not  to  be  considered  as 
either  a  capitation  tax  or  an  income  tax. 

The  seventh  section  of  the  act  declares  that  all  real  and  per- 
sonal estate  within  this  state,  whether  owned  by  individuals 
or  corporations,  shall  be  liable  to  taxation,  *fcc. 

The  fifth  section  of  the  act  declares  that  the  persons  and 


20  NEW  JERSEY  SUPREME  COURT. 


Newark  City  Bank  v.  The  Assessor. 


property  herein  after  s|>ecified  shall  be  assessed  ami  taxed  as 
herein  after  provided. 

The  sixth  section  regulates  the  im|>osition  of  the  personal 
or  |K>11  tax.  Then  follows  the  seventh  section,  already  cited. 

It  is  apparent,  from  these  citations,  that  the  bonds  and  se- 
curities are  themselves  taxed  as  personal  estate,  and  that  the 
tax  is  upon  them  as  property. 

As  to  the  third  point  stated,  I  think  Mr.  Wai  leu  is  taxable 
upon  the  foreign  railroad  and  bank  stock. 

The  power  of  the  legislature  to  tax  extra  territorial  stocks, 
when  owned  by  persons  taxable  in  this  state,  has  not  been  de- 
nied. It  has  been  deliberately  held  by  this  court  in  the  case 
of  The  SUite  v.  Branin,  3  Zab.  484  ;  The  State  v.  Bentley,  3 
Zab.  532.  The  only  question  is,  has  it  been  done  by  the  act 
of  1862? 

Several  reasons  have  been  assigned,  from  the  provisions  of 
the  act,  to  show  that,  by  it,  taxation  is  strictly  confined  to  per- 
sonal estate  within  this  state. 

It  is  urged  that,  by  the  fifth  section,  taxes  are  to  be  laid  on 
the  persons  and  property  in  the  act  specified,  as  therein  pro- 
vided ;  that  the  seventh  section  expressly  declares  that  all 
real  and  |>ersonal  estate  within  this  state,  whether  owned  by 
individuals  or  corporations,  shall  be  liable  to  taxation,  in  the 
manner  and  subject  to  the  exemptions  therein  specified,  that 
is,  in  the  act  specified.  It  will  be  jwrceived  that  the  argu- 
ment goe*  to  this  extent,  that  no  |>crsonal  estate  of  any  kind 
can  be  assessed  unless  within  this  state. . 

It  would  certainly  be  a  remarkable  result  if  the  legislature, 
in  iU  eflbrte  to  remodel  the  tax  laws,  so  as  to  extend  the 
range  of  taxation,  and  bring  within  its  reach  many  things 
before  exempt  from  taxation,  had,  by  some  strange  oversight, 
exempt**!  a  class  of  property  subject  to  taxation  until  the 
passage  of  the  supplement  of  1857.  Nix.  Dig.  802.  When 
the  a*!  of  1862  was  passed,  the  laws  in  force  regulating  the 
subject*  of  taxation  were  the  acts  of  1846, 1854,  and  the  sup- 
plement* of  1857  and  1861,  the  former  supplement  exempting 
from  taxation  all  public  stock  and  other  pn>|>erty  owned  by 


JUNE  TERM,  1862.  21 

Newark  City  Bank  v.  The  Assessor. 

residents  of  this  state  subject  to  taxation  in  any  other  state, 
on  which  taxes  shall  actually  be  paid,  the  latter,  the  funds  of 
certain  charitable  associations.  Nix.  Dig.  851  (802).  The 
second  section  of  this  act  of  1854  provided  that  all  real  and 
personal  estate  within  this  state,  whether  owned  by  individuals 
or  corporations,  should  be  liable  to  taxation. 

The  third  section  defined  the  meaning  of  the  term  real 
estate,  as  used  in  the  act,  to  include  all  lands,  all  water  power 
thereon,  all  buildings  or  erections  thereon  affixed  to  the  same, 
trees  and  underwood  growing  thereon,  and  all  mines,  quarries, 
and  all  fisheries. 

The  fourth  section  defined  the  term  personal  estate,  as  used 
in  the  act,  to  include  goods  and  chattels  of  every  description, 
including  steamboats  and  other  vessels,  money,  debts  due  or 
owing  from  solvent  debtors,  whether  on  contract,  note,  bond, 
or  mortgage,  public  stocks,  and  stocks  in  corporations,  whether 
within  or  without  this  state. 

The  twenty-first  section  of  the  act  of  1862  declared  the 
first,  second,  tenth,  and  eleventh  sections  of  the  act  of  1854, 
and  also  the  fourth  article  of  the  fifth  section  of  said  act,  and 
also  the  supplement  of  1857,  and  all  other  acts  and  parts  of 
acts,  whether  special  or  local,  or  otherwise'  inconsistent  with 
the  provisions  of  this  act,  repealed.  This  repealing  clause, 
it  will  be  seen  on  an  examination  of  the  act  of  1854,  leaves 
the  third  section,  defining  the  meaning  of  the  term  real 
estate,  the  fourth  section  defining  the  meaning  of  the  term 
personal  estate,  the  first,  second,  and  third  subdivisions  of 
the  fifth  section,  specifying  the  property  exempt  from  taxa- 
tion, un  repealed. 

All  the  sections  and  parts  of  sections,  supplied  and  altered 
by  the  act  of  1862,  are  thus  repealed ;  and  the  remaining 
sections  of  the  act,  thus  pointedly  left  unrepealed,  relates  to 
matters  unregulated  by  the  provisions  of  the  act  of  1862, 
such  as  the  place  where  the  personal  tax  shall  be  levied, 
the  mode  of  iflaking  out  the  duplicates,  the  mode  of  assess- 
ing trustees,  executors,  administrators,  and  guardians,  &c. 
Nothing  can  possibly  be  clearer  than  that  the  legislature 


NEW  JERSEY  SUPREME  COURT. 


Newark  Citv  Bank  v.  The  Assessor. 


meant  to  say  that  the  unrepealed  portions  of  the  act  were 
not  substantially  inconsistent  with  the  act  of  1862,  and 
should  stand,  except  where  modified  by  that  act.  If  this  be 
not  so,  there  is  no  provision  exempting  the  property  of  the 
United  States,  this  state,  counties,  townships,  cities,  and 
boroughs,  &c.,  from  taxation,  and  many  important  matters 
are  left  without  regulation.  These  acts  are  all  supplements 
to  the  act  of  1846,  are  all  in  parimateria,  and  to  be  construed 
together ;  and  when  one  of  these  acts  declares  that  a  certain 
word  or  phrase  is  to  be  construed  as  meaning  a  certain  thing 
in  this  act,  the  term  this  act,  or  equivalent  language,  means 
the  original  act  and  its  supplement.  In  contemplation  of  law, 
this  act  and  its  supplements  are  but  one  act  for  the  purpose  of 
construction. 

It  results  from  this  that  the  definitions  of  the  terms  real 
and  personal  esttde,  used  in  the  act  of  1854,  are  part  and 
parcel  of  the  act  of  1 862,  and  that  stocks  of  corporations 
and  public  stocks,  whether  within  this  state  or  out  of  it,  are 
taxable.  If  some  new  provision  has  been  introduced  in  the 
act  of  1862,  plainly  inconsistent  with,  and  intended  to  supply 
the  place  of  a  corresponding  provision  of  the  act  of  1854, 
the  act  of  1854  is  pro  tnnto  rejx'aled.  Of  such  a  character 
is  the  provision  of  the  8th  section,  taxing  domestic  corpora- 
tions and  exempting  their  stockholders  from  taxation.  By 
the  act  of  1854,  foreign  stocks  are  declared  to  be  personal 
estate  within  this  state,  when  owned  by  residents  here.  There 
is  nothing  in  the  act  of  1862  inconsistent  with  this  construc- 
tion. 

The  act  of  1854  declared  personal  estate  within  this  state 
taxable,  as  the  act  of  1862  also  docs.  The  act  of  1854,  in 
substance,  declares  foreign  stocks,  when  owned  here,  to  l»er 
for  the  purposes  of  taxation,  within  the  state,  and  thus  closes 
the  d«»or  against  legal  casuistry.  If  anything  could  make 
this  |K>int  clear,  it  is  the  express  repeal  of  the  supplement  of 
1857,  exempting  foreign  stocks,  when  taxed  abroad  and  the 
taxea  paid,  from  taxation  here. 

The  fourth  point  remaining  is  one  of  more  difficulty ;  but  I 


JUNE  TERM,  1862.  23 

Newark  City  Bank  v.  The  Assessor. 

think  the  City  Bank,  upon  a  fair  construction  of  the  act,  is 
exempt  from  taxation  upon  its  state  bonds  and  United  States 
securities.  The  difficulty  arises  from  the  peculiar  phrase- 
ology of  the  8th  section  of  the  act,  "  that  all  private  corpora- 
tions of  the  state,  &c.,  shall  be  and  are  hereby  required  to 
be  respectively  assessed  and  taxed  at  the  full  amount  of  their 
capital  stock  paid  in  and  accumulated  surplus ;  but  any  real 
estate  which  such  corporations  may  lawfully  own  in  any  other 
state  shall  not  be  liable  to  be  estimated  in  such  accumulated 
surplus ;  and  the  persons  holding  the  capital  stock  of  such 
corporations  shall  not  be  assessed  therefor." 

If  this  could  be  regarded  as  a  tax  upon  corporations,  as 
such,  and  not  upon  their  property,  they  could  not  claim  ex- 
emption for  non-taxable  property  held  by  them.  Although 
the  act  might  be  oppressive,  no  reason  is  perceived  for  doubt- 
ing its  validity.  It  is  competent  for  the  legislature,  indepen- 
dent of  any  contract  between  them  and  the  state,  to  tax  them 
at  discretion.  But  I  think  the  act  cannot  be  so  regarded. 
The  8th  section  expressly  exempts  from  estimation,  as  a  part 
of  the  surplus,  real  estate  owned  in  another  state,  and  the 
13th  section  provides  for  the  taxation  of  the  real  estate  of 
private  corporations  in  the  ward  or  township  where  it  is  lo- 
cated, and  directs  the  amount  of  the  assessment  to  be  de- 
ducted from  the  amount  of  the  capital  stock  and  surplus 
and  funded  debt,  or  of  the  valuable  assets  of  the  corporation. 
These  provisions,  in  connection  with  the  8th  section,  show 
that  the  tax  designed  by  the  act  was  a  tax  upon  the  property 
of  the  corporation,  not  its  franchise.  The  direction  of  the  act 
is,  in  substance,  that  the  amount  of  their  personal  estate,  upon 
which  the  tax  is  to  be  laid,  is  to  be  conclusively  ascertained 
by  the  amount  of  their  capital  paid  in  and  accumulated  sur- 
plus, deducting  the  value  of  their  real  estate  owned  in  this 
state  from  the  sum  total,  and  their  foreign  real  estate,  when 
lawfully  owned,  from  the  surplus.  The  act  was  designed^ 
doubtless,  to  "cut  off  all  other  deductions,  and  to  furnish  a 
plain  rule  by  which  to  assess  their  property,  without  inquiring 
into  their  investments. 


24  NEW  JERSEY  SUPREME  COURT. 

Newark  City  Bank  v.  The  Assessor. 

If  the  provision  is  equivalent  to  one  declaring,  that  from 
this  amount  no  deduction  shall  be  made  for  New  Jersey 
state  bonds  or  United  States  securities  issued  by  the  gov- 
ernment under  the  power  to  borrow  money,  but  that  they 
shall  be  included  in  the  amount  at  which  they  are  to  be  taxed, 
it  presents  the  question,  can  the  legislature,  consistently 
with  the  constitution  of  the  United  States,  enact  that  cor- 
porations shall  be  taxed  for  the  United  States  stocks  and 
securities  they  hold?  Nothing  can  be  plainer  than  that  it 
cannot.  What  it  cannot  do  directly  it  cannot  by  mere  cir- 
cumlocution. A  law  taxing  the  aggregate,  taxes  all  the  parts 
of  which  it  is  com|K>sed,  as  effectually  as  if  the  parts  were 
particularly  mentioned.  The  act  of  congress  exempts  these 
securities,  when  held  by  corporations  as  well  as  by  individ- 
uals, from  taxation  by  state  authority.  If  it  were  necessary, 
I  should  hold  this  section,  so  construed,  so  far  void  as  in 
conflict  with  the  constitution  of  the  United  States.  This 
may  I*  avoided  by  holding  that  all  property  held  by  them, 
by  other  acts  (not  capable  of  being  repealed  by  this  act)  or 
by  constitutional  provisions  exempt  from  taxation,  are  im- 
pliedly  excepted,  and  to  be  deducted  from  the  amount  of  the 
capital  stock  and  surplus.  The  act  is  not  to  be  interpreted 
so  a-*  to  make  it  conflict  with  constitutional  provisions  where 
that  <«n  be  avoided.  As  we  have  already  seen,  the  whole 
series  of  acts  on  this  subject  are  to  be  considered  as  one, 
and  construed  together.  A  cemetery  company,  although 
having  a  stock  paid  in,  would,  under  the  strond  snl>division 
of  the  fifth  section  of  the  act  of  1854,  be  entitled  to  have  its 
graveyard,  not  exceeding  ten  ncivs,  exempt  from  taxation. 
So  would  a  library  company  its  library,  an  academy  or  sem- 
inary of  learning  it*  proj)crty,  because  the  5th  section  of  the 
act  of  1854  is  unrepealed  and  in  full  force,  as  modified  by 
the  17th  section  of  the  art  of  18G2.  And  yet,  if  we  adhere 
to  the  strict  words,  "full  amount  of  their  capital  stock  and 
accumulated  surplus,"  these  exemptions  cannot  take  effect. 

The  broad  words  of  the  8th  svction  are  not  to  be  under- 
stood without  qualification  by  other  parts  of  the  act  and  the 


JUNE- TERM,  1862.  25 

Newark  City  Bank  v.  The  Assessor. 

other  acts  on  the  same  subject.  By  parity  of  reasoning,  all 
other  property  protected  by  constitutional  provision  is  also  to- 
be  excepted. 

We  ought  not  to  assume  that  the  legislature  intended  to 
lay  a  tax  on  property  by  the  constitution  and  laws  of  the 
United  States  exempt  from  taxation,  where  the  intent  has  not 
been  declared  in  unequivocal  language.  That  is  not  the  case 
here. 

The  bank  is  entitled  to  a  deduction  for  the  stock  issued  by 
this  state  held  by  it,  also  for  bonds  and  notes  of  the  United 
States  in  its  hands  owned  by  it. 

To  recapitulate  my  conclusions  : 

1.  The  bonds  issued  by  this  state  under  the  act  of  1861 
are  exempt  from  taxation  when  held  by  individuals  or  cor- 
porations. 

2.  The  stock  and  securities  issued  by  the   United  States- 
under  the  power  to  borrow  money  are  exempt  from  taxation 
in  the  hands  of  individuals  or  corporations. 

3.  Stocks  in  foreign  corporations,  held  by  individuals  resi- 
dent in  this  state,  are  personal  estate  within  this  state,  and 
subject  to  taxation. 

4.  Corporations   are  entitled  to  have   deducted  from  the 
amount  of  their  capital  stock  paid  in  and  accumulated  sur- 
plus, the  amount  of  the  bonds  of  this  state  and  the  stock  and 
public  securities  issued  by  the  United  States  owned  by  them 
at  the  time  of  assessment. 

ELMER,  J.     The  questions  arising  in  these  cases  are — 
First.  Are  the  stocks  and  bonds  of  the  United  States  tax- 
able by  this  state? 

As  the  act  of  congress  declares,  in  express  terms,  that 
they  shall  not  be  taxed  by  a  state,  this  is  simply  a  question 
of  constitutional  power.  Upon  this  question,  we  are  bound 
by  the  decisions  of  the  Supreme  Court  of  the  United  States, 
which  has  held  that  the  power  "  to  borrow  money  on  the 
credit  of  the  United  States"  carries  with  it,  by  necessary 


NENV  JERSEY  SUPREME  COURT. 


Newark  City  Bank  v.  The  Assessor. 


implication,  the  power  to  do  so  free  from  the  control  of  the 
states.    Weaton  v.  City  of  Charleston,  2  Peters  249. 

Whatever  may  be  our  individual  opinions  on  the  reasoning 
of  the  court  on  this  and  the  preceding  cases,  this  decision  is 
the  law  of  the  Union,  and  however  inconvenient  such  an  ex- 
emption may  prove,  it  is  our  duty  to  submit  to  the  para- 
mount power  of  congress  over  a  subject  belonging  exclu- 
sively to  the  general  government.  It  is  true,  as  suggested  by 
the  attorney  general,  that  a  part  of  this  tax  is  to  be  assessed 
and  collected  to  enable  the  state  to  pay  its  quota  of  a  direct 
tax  of  twenty  millions  of  dollars,  imposed  by  congress, 
and  assumed  by  this  state.  The  act  of  congress  provides 
that  any  state  or  territory  may  lawfully  assume,  assess,  col- 
lect, and  pay  into  the  treasury  of  the  United  States  its 
quota,  in  its  own  way  and  manner,  and  through  its  own 
officers,  and  may  use  for  this  purpose  the  last,  or  any  sub- 
sequent valuation  list  or  appraisal  made  by  state  or  territo- 
rial authority.  The  act  exempting  these  stocks  and  bonds  is 
subsequent  in  time  to  the  direct  tax  law.  But  were  it  other- 
wise, I  do  not  see  how  this  tax  law  can  affect  the  question. 
So  far  as  it  professes  to  confer  any  power  on  the  legislature 
of  this  .state,  it  is  destitute  of  constitutional  authority.  The 
lowers  of  the  state  legislature  are  derived  directly  from 
the  people  of  the  state,  and  not  from  an  act  of  congress.  It 
has  not  imposed  this  tax  by  virtue  of  the  act,  but  by  virtue 
of  ite  general  power  oT  taxation.  A  part  of  the  money  raised 
has  been  paid  into  the  treasury  of  the  United  States,  for  a 
pur|x«He  in  which  the  |xx>ple  of  this  state  have  a  deep  inter- 
est; but  it  is  not  less  a  state  tax  for  state  purposes,  and  the 
sum  |Kiid  into  the  treasury  is  so  mingled  with  the  sums  raised 
for  other  puriKMcs  that  they  cannot  lx>  separated.  In  my 
opinion,  the  bonds  and  storks  of  the  United  States  are  exempt 
from  taxation  by  the  htate  for  any  purj>ose. 

Second.  Are  the  bond.-*  issued  by  this  state  taxable? 

U|H>n  this  question  tlu-re  is  no  room  for  doubt;  they  are 
<\l>reasly  exempted  by  the  law  of  the  state,  and  have  this 
exemption  printed  on  them.  Even  if  issued  since  the  tax 


JUNE  TERM,  1862.  27 

Newark  City  Bank  v.  The  Assessor. 

law  was  passed,  they  bear  the  pledge  of  the  state  that  they 
shall  not  be  taxed  ;  a  pledge  there  is  no  reason  to  suppose  the 
legislature  meant  to  violate. 

Third.  Is  a  bank  or  other  corporation,  by  the  true  con- 
struction of  the  eighth  section  of  the  recent  tax  law,  entitled 
to  have  the  amount  of  such  bonds  and  stocks  held  by  them 
deducted  from  the  capital  stock  and  accumulated  surplus,  so 
as  to  be  taxed  only  on  the  balance? 

This  question  is  far  more  difficult  of  solution  than  the 
others.  The  explicit  words  are,  that  private  corporations, 
with  certain  exceptions,  are  required  "to  be  respectively 
assessed  and  taxed  at  the  full  amount  of  the  capital  stock 
paid  in  and  accumulated  surplus."  This  would  seem  to 
mean  that  no  inquiry  is  to  be  made  as  to  how  the  capital  paid 
in  and  the  surplus  may  happen  to  be  invested ;  for  it  is  be- 
yond doubt  that  the  state  legislature  has  the  constitutional 
power  to  tax  corporations  or  classes  of  individuals,  by  an  ar- 
bitrary rule  in  the  nature  of  a  poll  tax,  without  regard  to 
their  property.  The  question  is,  whether  the  present  law, 
fairly  interpreted,  shows  such  a  purpose?  It  is  plain  that, 
with  the  exception  of  the  poll  tax  provided  for  in  the  sixth 
section,  the  act  is  framed  upon  the  principle  of  assessing  the 
tax  required  on  real  and  personal  estate.  Such  is  the  lan- 
guage of  the  seventh  section ;  and  the  thirteenth  section  pro- 
vides that  the  real  estate  of  corporations  shall  be  assessed  to 
said  corporations  where  they  are  situate,  and  the  amount  of 
such  assessment  shall  be  deducted  from  the  amount  of  the 
capital  stock  and  surplus.  We  cannot  presume  that  the 
legislature  meant  to  disregard  its  own  pledge,  upon  the  faith 
of  which  these  corporations  have  taken  the  state  bonds,  nor 
that  they  meant  to  violate  an  act  of  congress.  It  was  .urged, 
on  behalf  of  the  state,  that  these  stocks  and  bonds  are  not 
in  fact  property,  but  only  represent  property  loaned  to  and 
used  by  the  government.  The  tax  law,  however,  treats  them 
as  property,  as^-it  does  other  choses  in  action ;  and  those  laws 
which  in  terms  exempt  them  from  taxation,  do  so  on  the  sup- 
position that  they  would  be  taxed,  if  taxed  at  all,  as  property. 


NEW  JERSEY  SUPREME  COURT. 


Newark  Citv  Bank  v.  The  Assessor. 


To  (ax  them  therefore  as  property,  in  whosesover  liands  they 
may  be,  or  by  whatever  device,  is  to  disregard  the  exemption. 
This  I  cannot  suppose  the  legislature  meant  to  do;  and  it* 
they  did,  it  was  beyond  their  power.  Nor  is  it  forgotten 
that  it  does  not  apj>ear,  and  probably  is  not  the  fact,  that 
the  corporation  prosecuting  this  certiorari  has  by  any  for- 
mal statement  of  its  accounts,  or  in  any  way  vested  its 
capital  and  surplus  specifically  in  the  stocks  and  bonds. 
They  are  doubtless  in  the  same  situation  as  discounted  bills 
or  other  loans  made  by  it,  which  in  the  aggregate  largely 
exceed  the  capital  and  surplus.  But  this  cannot  alter  the  real 
situation  of  the  case.  The  debts  due  by  the  bank  are  entitled 
to  be  deducted  from  its  assets,  so  far  at  least  as  loans  in 
excess  of  the  capital  paid  in  are  concerned ;  and  this 
being  done,  it  follows  that  the  stock  and  bonds  in  question 
are  in  fact  a  part  of  the  surplus  capital.  I  think  we  cannot 
escape  the  conclusion  that  cor|x>rations  are  entitled  to  deduct 
from  their  capital  and  surplus  the  amount  of  United  States 
and  New  Jersey  bonds  owned  by  them  when  the  assessment  is 
made. 

Fourth.  Are  the  stocks  of  corporations  in  another  state  tax- 
able in  this  state? 

It  is  insisted,  for  the  prosecutor,  that  the  seventh  section 
of  the  act  declares  that  all  real  and  personal  estate  within 
this  state,  shall  be  liable  to  taxation,  and  that,  as  all  incon- 
sistent acts  are  rc|HH.iled,  no  personal  property  but  such  as  is 
actually  within  this  state  is  now  to  be  taxed.  But  the  re- 
|>ealiiig  clauxe,  the  21st,  in  terms  repeals  the  second  and 
several  other  sections  of  the  act  of  1854,  and  does  not  repeal 
the  others.  Among  those  not  re|>calcd  is  the  fourth  section 
of  that  act,  which  declares  that  "the  term  personal  estate, 
as  used  in  this  act,  shall  Ixj  const  rued  to  include  goods,  &c., 
public  fttocks,  and  stocks  in  corporations,  whether  within  or 
with- -IK  the  state."  And  to  make  the  legislative  intention 
more  plain,  the  act  of  1857,  which  modified  the  fourth  section 
of  the  art  of  1851,  is  expressly  re | Killed.  This  leaves  no 
room  for  construction  or  doubt.  When  certain  named  sec- 


JUNE  TERM,  1862.  29 


State  v.  Babcock. 


dons  are  declared  to  be  repealed,  it  necessarily  results  that  the 
others  are  meant  to  be  left  in  force,  and  are  thus  in  effect  de- 
clared not  to  be  inconsistent  with  the  new  act.  The  fourth 
section  of  the  act  of  1854  is  thus  made  a  part  of  the  act 
of  1862,  and  explains  and  enlarges  the  meaning  of  the  seventh 
section,  just  as  originally  it  explained  and  enlarged  the  second 
section  of  the  act  of  1854,  for  which  the  seventh  section  of  the 
act  of  1862  is  substituted,  being  slightly  altered.  I  am  there- 
fore of  opinion  that  the  value  of  stocks  in  corporations  of 
other  states  is  to  be  added  to  other  personal  property,  and 
taxed  in  the  same  manner. 

VREDENBURGH,  J.,  concurred,  except  as  to  the  exemption 
of  United  States  bonds  and  stocks.  VAN  DYKE,  J.,  concurred, 
except  as  to  taxation  of  stocks  held  in  corporations  in  other 

states. 

CITED  in  Mechanics  and  Traders  Bank  v.  Bridges,  infra  117 ;  State,  Mu- 
tual Life  and  Casualty  Co.,  pros.,  v.  Haight,  Collector,  5  Vroom  130;  State,  In- 
ternational and  Life  Assurance  Co.,  pros.,  v.  Haight,  Collector,  6  Vroom  280. 


STATE  v.  BABCOCK  AND  BABCOCK. 

1.  An  indictment  will  lie  for  a  nuisance  in  obstructing  Hudson  river,  by 
placing  vessels  and  wrecks  on  the  shore  between  the  high  and  low 
water  lines,  but  not  for  placing  them  below  the  low  water  line. 

2.  The  exclusive  jurisdiction  in  and  over  the  waters  of  the  Hudson,  and 
in  and  over  the  land  covered  by  those  waters,  is  in  the  state  of  New 
York,  and  not  in  the  state  of  New  Jersey. 

The  indictment  in  this  case  was  found  in  the  Court  of  Oyer 
and  Terminer  of  the  county  of  Hudson,  and  removed  by  cer- 
tiorari  into  the  Supreme  Court.  It  was  taken  down  for  trial 
before  the  Circuit  Court  of  said  county,  and  the  jury  returned  a 
general  verdict  of  guilty,  together  with  a  special  state  of  the  case. 

Argued  before  the  CHIEF  JUSTICE  and  Justices  HAINES, 
VAN  DYKE,  and  ELMER. 

For  the  State,  Isaac  W.  Scudder. 

For  defendants,  S.  B.  Ransom. 
VOL.  i.  B 


30  NEW  JERSEY  SUPREME  COURT. 

State  v.  Babcock. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  By  the  compact  between  the  states  of  New 
Jersey  and  New  York,  ratified  by  the  legislatures  of  the  two 
states,  and  approved  by  congress,  Nix.  Dig.  822,*  the  state  of 
New  York  has  exclusive  jurisdiction  of  and  over  all  the  waters 
of  Hudson  river,  and  of  and  over  the  lands  covered  by  the 
said  waters,  to  the  low  water  mark  on  the  New  Jersey  shore; 
and  the  state  of  New  Jersey  has  the  exclusive  right  of  property 
in  and  to  the  land  under  the  water  lying  west  of  the  middle 
of  the  river,  ami  exclusive  jurisdiction  of  and  over  the  wharves, 
docks,  and  improvements  made  and  to  IK?  made  on  the  Jersey 
shore,  and  on  vessels  aground  on  said  shore,  or  fastened  to 
any  such  wharf  or  dock,  except  as  to  quarantine  regulations 
and  the  exclusive  right  of  regulating  the  fisheries  on  the 
westerly  side  of  the  middle  of  the  river.  The  waters  of  the 
Hudson,  although  exclusively  within  the  jurisdiction  of  New 
York,  are  a  common  highway  for  all  the  citizens  of  the 
United  States.  Any  obstruction  to  that  highway,  placed  on 
the  shore  above  low  water  mark,  which  shore  remains  exclu- 
sively within  the  jurisdiction  of  New  Jersey,  either  by  means 
of  vessels,  logs,  stones,  or  other  temporary  obstructions  placed 
there,  or  by  means  of  a  wharf  or  other  improvements  which 
are  injurious  t<>  the  navigation,  is  of  course  indictable  in  this 
State;  while  ol*tructions  below  the  low  water  mark  where  not 
only  the  water  but  the  land  under  the  water  arc  exclusively, 
except  as  to  the  fisheries,  within  the  jurisdiction  of  New  York, 
can  only  be  punished  by  prom-dings  in  the  court*  of  that 
state  or  of  the  United  States.  If  by  docks,  as  used  in  the 
compact,  i«  meant,  as  I  snpjxHC  according  to  the  American 
usage,  the  Hpaccn  Iwtwct-n  the  wharves,  the  land  covered  by  the 
water  within  wich  dock*  is  also  within  the  jurisdiction  of  this 
Htate,  ami  obstruction*  plan-d  therein,  which  are.  injurious  to 
the  navigation,  may  be  indicted  in  our  courts. 

The  indictment  in  the  ease  Ix-fore  us  charges  that  the  de- 
fendants obstructed  the  free  navigation  of  the  river,  by 
placing,  sinking,  and  lodging  in  said  river,  and  upon  the 

•/fc».,p.  1178. 


JUNE  TERM,  1862.  31 

State  v.  Babcock. 

shore  of  this  state  in  said  river,  certain  ships,  schooners, 
boats,  and  other  vessels ;  and  it  is  found  as  a  fact  by  the 
jury,  according  to  the  special  case  returned  to  us  with  a 
general  verdict  of  guilty,  that  the  defendants  had,  within 
the  time  specified  in  the  indictment,  placed  and  procured  to 
be  placed  vessels  and  wrecks  of  vessels,  both  above  and 
below  the  low  water  line,  which  were  an  interruption  to 
the  free  navigation  of  the  river.  Other  facts  are  also  found 
by  the  jury,  which  perhaps  were  meant  to  show  that  ob- 
structions were  placed  in  a  dock ;  but  the  indictment  does  not 
•charge  that  any  obstructions  were  placed  in  a  dock,  nor  do 
the  facts  stated  enable  us  judicially  to  determine  that  such  was 
the  case.  What  is  a  dock,  I  suppose  is  a  mixed  question  of 
fact  and  law. 

Had  the  special  case  explicitly  stated  that  the  obstructions 
placed  on  the  shore,  that  is  on  the  land  covered  by  the  tide 
between  the  ordinary  high  and  low  water  lines,  were  ob- 
structions to  the  navigation  of  the  river,  and  did  it  suffi- 
ciently appear  that  the  two  defendants  had  acted  jointly  in 
placing  and  keeping  them  there,  I  should  be  of  opinion  that 
judgment  ought  to  be  pronounced  for  the  state.  As  the  case 
appears,  it  will  be  the  only  safe  course  to  send  down  the  case 
for  a  new  trial,  that  these  two  questions  may  be  distinctly  sub- 
mitted to  the  jury. 

It  has  been  earnestly  insisted  that  the  safety  of  property 
holders  on  the  Jersey  shore  requires  us  to  hold  that  ob- 
structions in  the  river,  outside  of  the  low  water  line,  if  in- 
jurious to  the  navigation  of  vessels  coming  to  that  shore,  are 
offences  against  our  laws  and  indictable  in  our  courts.  But 
apprehensions  of  this  kind,  which  are  probably  altogether 
imaginary,  will  not  justify  us  in  departing  from  the  plain 
meaning  of  the  compact.  Although,  for  some  purposes,  New 
Jersey  is  bounded  by  the  middle  of  the  Hudson  river,  and 
the  state  owns  the  land  under  the  water  to  that  extent,  ex- 
clusive jurisdiction,  not  only  over  the  water,  but  over  the 
land  to  the  low  water  line  on  the  Jersey  shore,  is  in  plain 
and  unmistakable  language,  granted  to,  or  rather  acknowl- 


32  NEW  JERSEY  SUPREME  COURT. 

State  v.  Babcock. 

edged  to  belong  to  the  state  of  New  York.  There  is  no- 
reason  to  doubt  that  the  tribunals  of  that  state,  which  have 
a  common  interest  in  preventing  all  obstructions  to  the 
navigation  of  the  waters  surrounding  their  most  important 
city,  will  not  only  punish  all  crimes  against  our  citizens  or 
their  own,  while  in  or  upon  those  waters,  but  will  also  ade- 
quately punish  all  interference  with  the  navigation.  The 
OMB  does  not  materially  ditfer  from  a  line  between  two  states 
on  the  land  which  hap|>ens  to  be  the  scene  of  a  busy  popula- 
tion, where  a  manufactory  near  to  that  line,  in  one  state,  may 
be  a  nuisance  to  the  citizens  of  the  other,  whose  redress  will 
have  to  be  obtained  from  the  tribunals  of  the  state  in  which 
the  nuisance  is  situate. 

As  persons  not  acquainted  with  the  circu instances  of  the 
dispute  between  the  states  of  New  Jersey  and  New  York,  in 
regard  to  their  respective  rights  in  the  river  and  bay  sepa- 
rating them,  have  sometimes  complained  of  the  compact 
•greed  upon  in  the  year  1833,  after  a  long  and  troublesome 
controversy,  ami  after  the  failure  of  two  previous  attempts 
to  terminate  it  by  agreement,  as  having  conceded  too  much 
to  New  York,  it  may  be  proper  to  take  this  opportunity  of 
explaining  the  obvious  motives  which  induced  the  commis- 
sioners and  the  legislature  of  this  state  to  consent  to  the  ternfe 
finally  adopted. 

The  territories  now  forming  the  states  of  New  York  and 
New  Jersey,  including  by  name  Hudson  river,  were  granted 
originally  by  king  Charles  the  second  to  his  brother,  the 
Duke  of  York,  afterwards  James  the  second.  The  duke 
granted  to  Lord  Berkeley  and  Sir  George  Carteret  the  terri- 
tory now  the  state  of  New  Jersey,  and  described  it  as  "  all 
that  tract  of  land  adjacent  to  New  England,  and  being  to 
the  westward  of  Long  Island  and  Manhattan  Island,  and 
bounded  on  the  east  part  by  the  main  sea  and  part  by  Hud- 
son river,  and  hath  upon  the  west  Delaware  bay  or  river." 
Between  the  date  of  this  grant  and  the  Revolution,  the 
charter*  of  New  York  city,  ami  the  proceedings  of  its  author- 
ities, showed  that  it  hail  always  been  claimed  that  the  whole 


JUXE  TERM,  1862.  33 


State  v.  Babcock. 


•of  Hudson  river,  up  to  the  low  water  mark  on  the  westerly 
shore,  belonged  to  that  state.  But  it  was  only  after  the 
Revolution,  and  when  it  appeared  that,  if  this  claim  was 
acquiesced  in,  all  the  wharves  and  improvements  on  the 
Jersey  shore  would  be  subject  to  the  control  of  New  York, 
that  New  Jersey  claimed  that,  by  conquest  from  the  crown, 
the  right  of  New  Jersey  was  extended  to  the  middle  of  the 
river.  This  led  to  the  appointment  of  commissioners  by  the 
two  states  to  settle  the  conflicting  claims  in  1807,  and  again 
in  1827,  without  success. 

In  the  meantime,  Judge  Washington  had  decided  that  the 
grant  to  New  Jersey  limited  its  territory  to  the  eastern 
shore  of  the  Delaware  river  and  bay,  a  decision  acknowledged 
by  this  court  to  be  correct.  State  v.  Davis,  1  Dutcher  386. 
And,  which  was  still  more  adverse  to  the  claim  of  this  state 
in  reference  to  the  waters  of  the  Hudson,  the  Supreme  Court 
of  the  United  States  laid  down  the  doctrine,  that  "  when  a 
.great  river  is  the  boundary  between  two  nations  or  states,  if 
the  original  property  is  in  neither,  and  there  be  no  conven- 
tion respecting  it,  each  holds  to  the  middle  of  the  stream. 
But  when,  as  in  this  case,  one  state  is  the  original  proprie- 
tor, and  grants  the  territory  on  one  side  only,  it  retains  the 
river  within  its  own  domain,  and  the  newly  created  state 
extends  to  the  river  only ;"  and  upon  this  principle  they  held 
that  the  Ohio'  river  was  exclusively  within  the  territorial 
limits  of  Kentucky,  and  that  Indiana  had  no  jurisdiction 
over  or  right  to  the  river.  Handlers  Lessee  v.  Anthony,  5 
Wheat.  374. 

When  the  commissioners  of  New  Jersey  and  New  York 
again  met,  in  1833,  and  it  was  found  that  those  of  the  latter 
«tate  appeared  to  be  desirous  of  arranging  the  dispute  upon 
fair  and  liberal  terms,  but  deemed  it  indispensable  that  their 
great  commercial  emporium  should  have  the  exclusive  con- 
trol of  the  police  on  the  surrounding  waters,  and  full  power 
to  establish  Such  quarantine  regulations  as  should  be  found 
necessary,  the  commissioners  of  this  state  deemed  it  wise  to 
secure  the  exclusive  property  in  the  soil  to  the  middle  of  the 


34  NEW  JERSEY  SUPREME  COURT. 

State  T.  Babcock. 

river,  and  exclusive  jurisdiction  over  the  wharves,  docks,  and 
other  improvements  made  or  to  be  made  on  the  Jersey  shore,. 
and  of  the  vessels  fastened  thereto,  and  the  right  to  regulate 
the  adjacent  fisheries,  leaving  to  New  York,  which  was  thought 
to  be  quite  as  much  a  burthen  as  a  privilege,  the  exclusive 
jurisdiction  over  the  offences  in  or  upon  the  waters  or  the 
land  covered  by  the  water  outside  of  the  low  water  mark.  As 
it  was  thought  possible  that  the  time  might  come  when  Perth 
Am  boy  should  be  an  important  city,  like  exclusive  jurisdic- 
tion over  the  adjacent  waters  to  low  water  mark  on  Statei* 
Island  was  secured  to  this  state.  Nothing  has  since  occurred 
to  make  the  propriety  of  this  arrangement  doubtful ;  on  the 
contrary,  there  is  every  reason  to  believe  that  it  has  secured 
important  rights  to  this  state,  which  otherwise  might  have 
been  lost. 

In  further  elucidation  of  this  subject,  it  is  to  be  noticed 
that  the  river  Delaware  was  never  within  the  jurisdiction; 
either  of  this  state  or  Pennsylvania  until,  by  the  Revolution, 
the  rights  of  the  crown  were  extinguished,  and  each  state  then- 
held  to  the  middle.  Under  these  circumstances,  the  agree- 
ment between  the  two  states,  adopted  in  1783,  Nix.  Dig.  824,* 
provided  that  the  two  .states  should  have  concurrent  jurisdic- 
tion in  and  u|K>n  the  water  of  that  river.  Of  so  little  im- 
portance, however,  was  this  regulation,  that  it  was  not  until 
BO  lately  as  1856, f  that  any  law  of  this  state  was  passed  pro- 
viding for  the  punishment  of  offences  committed  on  the  river. 

A  new  trial  ordered. 

•Bw.,  p.  1181.    f-P-  L.,  1866,  p.  242. 


JUNE  TERM,  1862.  35 


Ortley  v.  Chadwick. 


ACHSA  E.  OETLEY  v.  SAMUEL  L.  CHADWICK. 

1.  A  paper  may  be  competent  evidence  of  a  fact  stated  in  it,  although 
invalid  as  an  agreement  to  bind  the  party. 

2.  The  statements  of  an  agreement  invalid  for  want  of  consideration  may 
be  competent,  and  may  be  proved  by  the  paper. 


In  ejectment.     Case  certified  from  Ocean'  Circuit  Court. 
For  the  plaintiff,  /.  D.  BedU. 

• 

For  the  defendant,  A.  C.  McLean. 

CHIEF  JUSTICE.  This  was  an  action  of  ejectment  for  27.45 
acres  of  land,  which  was  once  the  bed  of  Cranberry  inlet,  in 
the  county  of  Monmouth. 

The  plaintiff  claimed  the  land  under  a  patent  from  the 
board  of  proprietors  to  Thomas  Gordon,  dated  April  1st, 
1703,  which  it  was  insisted  covered  the  premises  in  dispute. 

The  defendant  claimed  that,  when  the  Gordon  patent  was 
issued,  Cranberry  inlet  covered  the  premises  in  dispute;  that 
it  being  land  in  the  bed  of  this  arm  of  the  sea,  it  was  not 
within  the  patent,  and  did  not  pass  by  its  terms. 

The  description  in  the  patent  was  as  follows :  also  another 
tract  on  Barnegat  beach,  beginning  at  Margaret  Winder's 
land,  which  is  forty  chains  below  the  mouth  of  Vale  creek, 
and  running  southwest  along  the  beach  to  the  new  inlet  in 
length,  and  from  the  sea  to  the  beach. 

The  defendant's  title  was  founded  upon  a  survey  and  re- 
turn of  the  lands,  made  in  1837,  to  Edward  Brinley,  who 
conveyed  it  to  defendant. 

The  principal  controversy  at  the  trial  was,  whether  this 
land  was  covered  with  water  at  the  date  of  the  Gordon 
patent. 

The  evidence  on  the  part  of  the  plaintiff  tended  to  show 
that  the  inlet  broke  through  after  the  Gordon  patent  was 
issued,  remained  ooen  until  1816,  and  then  closed.  The  de- 


30  NEW  JERSEY  SUPREME  COURT. 


Ore  ley  v.  Chadwick. 


fendant's  evidence,  that  it  was  open  in  April,  1703,  the  date 
of  the  patent.  The  real  question  in  the  cause  was,  whether 
the  new  inlet  mentioned  in  the  Gordon  patent  was  below 
Cranberry  inlet,  or  was  Cranberry  inlet. 

The  plaintiff*  insisted  it  was  below  it,  and  not  it,  and  en- 
deavored to  prove  it. 

On  his  principal  case  the  plaintiff  offered  in  evidence,  not 
as  a  part  of  his  title,  for  he  did  not  claim  tinder  it,  a  deed 
from  Andrew  Bell  and  F.  W.  Briuley  to  Michael  L.  Ortley, 
dated  August  22d,  1857,  to  fix  the  beginning  corner  of  the 
defendant's  survey.  This  was  a  deed  for  123.40  acres. 

After  the  defendant  had  given  his  documentary  evidence, 
he  was  sworn,  and  stated,  that  Ortley  told  him,  shortly  after 
he  took  up  this  land,  that  the  reason  he  did  not  take  it  all  up 
across  the  beach  was  because  it  was  too  sandy  ;  he  did  not 
want  to  pay  tax  for  it. 

This  testimony  was  offered  in  relation  to  this  123  acre 
tract,  conveyed  by  Bell  and  Brinley  to  Ortley  in  1857,  to 
show  that  Ortley  admitted  that  the  land  was  then  vacant,  and 
gave  as  a  reason  for  not  taking  it  up,  not  that  it  was  a 
part  of  the  old  beach  covered  by  the  Gordon  patent,  but  that 
it  was  too  sandy.  In  order  to  parry  the  force  of  this  evi- 
dence, the  plaintiff,  on  his  rebutting  case,  endeavored  to 
show  that  such  was  not  the  reason  why  it  was  not  included 
in  the  123  acre  survey,  but  that  the  true  reason  was  that  the 
surveyor  who  made  the  survey,  under  an  agreement  between 
Bell  and  Brinley  and  Ortley,  did  not  then  think  it  new  land, 
but  a  part  of  the  old  Gordon  patent.  The  plaintiff  here  of- 
fered in  evidence  an  agreement  Ix-tween  Andrew  Bell  and 
Franc-is  W.  Brinley,  a  committee  of  the  board  of  proprietors, 
and  Ortley,  by  which  they  agreed  to  convey  to  Ortley  all  the 
vacant  meadow  and  Hedge  islands  now  lying  op|>osite  to  and 
adjoining  the  part  of  the  lieach  now  owned  by  Ortley  in  Bar- 
uegat  bay,  in  the  county  of  Bionmouth,  the  survey  thereof  to 
be  made  by  Ananias  Gifford. 

To  the  reception  of  this  pajwr  in  evidence,  the  defendant 
made  two  objections. 


JUNE  TERM,  1862.  37 

Ortley  v.  Chadwick. 

1st.  That  it  was  not  the  best  evidence ;  that  the  minutes  of 
the  board  should  have  been  offered  to  show  the  authority  of 
Bell  and  Brinley  to  make  it. 

2d.  That  it  was  not  rebutting  evidence. 

The  judge  admitted  it,  suspended  judgment  on  the  verdict, 
and  certified  to  this  court  the  following  question  for  its  ad- 
visory opinion,  whether  the  agreement  was  legal  evidence  at 
all,  and  when  offered.  The  only  objection  made  to  the  au- 
thenticity of  the  agreement  was  not  that  it  was  not  proved 
by  the  subscribing  witness,  but  that  the  minutes  of  the 
board  should  have  been  produced  to  show  the  authority  of 
Bell  and  Brinley.  Judge  Gifford,  who  was  named  in  it,  said 
he  was  present  with  Ortley  before  the  board  when  the  agree- 
ment was  made;  that  it  was  signed  before  the  board,  and 
in  their  presence.  He  also  testified  that  he  made  the  survey 
in  conformity  to  the  agreement,  and  did  not  include  the  tract 
in  dispute,  because  it  was  not  vacant  land,  but  included  in  the 
Gordon  patent. 

The  Bell  and  Brinley  deed,  offered  in  evidence  before  this 
by  both  parties,  showed  that  this  agreement  had  been  carried 
into  effect  by  both  parties,  and  the  land  included  in  it  con- 
veyed to  Ortley,  on  the  22d  August,  1857,  by  Bell  and  Brin- 
Jey,  to  whom  it  was  returned. 

It  was  entirely  immaterial  whether  the  agreement  was 
binding  upon  the  board  or  not.  It  was  not  offered  as  evi- 
dence of  title,  but  of  intention  to  show  that  Ortley  intended 
to  buy  and  have  surveyed  all  the  vacant  land,  and  not  a  part 
of  it,  to  rebut  the  evidence  of  Chadwick,  that  he  did  not  have 
the  whole  vacant  land  surveyed,  because  it  was  too  sandy. 
The  argument  from  the  agreement  was,  that  Ortley  could 
not  have  said  so,  because  he  had  bargained  for  the  whole, 
had  expressed  his  intention  to  have  the  whole,  and  bound 
himself  to  take  the  whole,  and  that,  in  consequence,  Gifford 
surveyed  the  whole.  Taken  in  connection  with  the  deed  of 
Bell  and  Brinley,  which  was  in  execution  of  it,  it  showed 
that  they  intended  to  sell  the  whole  vacant  land,  which  the 
declaration  of  Ortley  tended  to  disprove. 


38  NEW  JERSEY  SUPREME  COURT. 


Ortley  v.  Chadwick. 


The  fact  of  its  execution  by  them,  as  a  committee  of  the 
board,  not  being  denied,  and  it  having  been  carried  into  exe- 
cution by  a  subsequent  return  and  conveyance,  and  Giffbrd 
having  made  the  survey,  as  he  swears,  to  carry  it  into  execu- 
tion, it  was  coni|>etent  without  any  proof  to  show  that  it  was 
binding  on  the  board  when  macle. 

A  paper  may  be  competent  evidence  of  a  fact  stated  in  it,, 
although  invalid  as  an  agreement  to  bind  the  party. 

The  statements  of  an  agreement,  invalid  for  want  of  a  con- 
sideration, may  be  competent,  and  may  be  proved  by  the 
pa]>er. 

The  statement  of  Ortley  was,  that  he  did  not  buy  all  the 
vacant  land.  His  previous  acts,  thus  proved,  showed  he  did. 

The  paper  was  a  component  part  of  Ortley's  act  of  pur- 
chase. It  was  competent  for  him  to  show  that  he  did  buy  all 
the  vacant  land,  had  it  surveyed  and  conveyed  to  him. 

Gifford  testified  he  surveyed  all  the  vacant  land,  to  carry 
into  effect  that  pa|>er.  It  was  competent,  whether  valid  as  an 
agreement  or  not,  to  explain  and  corroborate  the  evidence  of 
Gifford. 

The  paj»er  was  legal  evidence  in  the  cause,  and  was  prop- 
erly admitted  as  rebutting  evidence.  It  legally  tended  to 
destroy  the  effect  of  the  plaintiff's  admission,  by  showing 
either  that  it  was  never  made,  or,  if  made,  that  it  was  not  in- 
tended as  an  admission  that  the  land  was  vacant. 

KI.MKI:.  J.  The  question  certified  to  this  court  for  its  ad- 
visory opinion  in,  whether  a  certain  agreement,  signed  by 
Andrew  Bell  and  Francis  W.  Brinlcy,  dated  May  16th,  1837, 
"  was  legal  evidence  at  all,  and  when  offered."  Instead  of 
explicitly  stating  under  what  circumstances  and  for  what 
purpose  the  JKIJKT  wa«  offered,  as  it  is  very  desirable  such 
cases  should  do,  this  case  leaves  us  to  infer  thin  from  a  mass 
of  testimony  and  a  mere  reference  to  document*,  most  of 
which  have  no  relation  to  the  point  submitted.  It  appears 
tliat  the  plaintiff  claimed  title  to  a  tract  of  land  on  the  sea 
shore,  in  the  possession  of  the  defendant,  under  a  survey 


JUNE  TERM,  1862.  39 

Ortley  v.  Chadwick. 

made  in  1703,  called  the  Gordon  survey.  The  defendant 
claimed  the  premises  by  virtue  of  a  survey  of  twenty-seven 
acres,  recorded  in  1859,  for  Edward  Brinley.  The  title  of 
the  respective  parties  turned  on  the  question,  whether  the 
boundaries  of  the  Gordon  survey  included  the  land  surveyed 
to  Brinley.  It  is  described  very  vaguely  as  "beginning  at 
Margaret  Winder's  land,  which  is  forty  chains  below  the 
mouth  of  Vale  creek,  and  running  southwest  along  the 
beach  and  the  new  inlet  in  length,  from  the  sea  to  the  beach 
in  breadth."  The  main  point  of  dispute  seems  to  have  been 
the  situation,  at  that  time,  of  the  "new  inlet."  After  the 
plaintiff  had  put  in  evidence  sundry  documents  and  much 
verbal  testimony  tending  to  show  the  change  of  the  inlet  and 
other  circumstances,  and  had  rested  his  case,  the  defendant 
produced  evidence  tending  to  show  that  what  has  in  modern 
times  been  called  Cranberry  inlet,  was  there  at  the  date  of 
the  Gordon  survey.  He  also  gave  in  evidence  a  survey  to  Bell 
and  Brinley,  dated  in  1837,  for  123  acres,  which  he  insisted 
tended  to  show  this,  and  otherwise  to  aid  in  fixing  the  true 
location  of  the  Gordon  survey;  and  for  the  same  objects  the 
defendant  himself  testified  that  Michael  Ortley,  under  whom 
the  plaintiff  claimed,  told  him,  a  little  while  after  he  took  up 
the  123  acres,  that  the  reason  he  did  not  take  it  all  up  across 
the  beach  was  because  it  was  too  sandy ;  he  did  not  want  to 
pay  tax  for  it.  By  taking  it  up  across  the  beach  he  would 
have  taken  up  the  disputed  land,  or  some  part  of  it,  and  the 
inference  from  this  declaration  was,  or  might  be,  that  he  did 
not  claim  it  under  the  Gordon  title.  After  the  defendant  had 
rested,  the  plaintiff  produced  the  agreement  in  question^ 
which  had  been  previously  stated  by  a  witness  to  be  the 
same  by  virtue  of  which  the  survey  of  1 23  acres  was  made. 

It  was  urged,  for  the  defendant,  that  this  agreement  was 
inadmissible,  because  the  minutes  of  the  council,  whereby 
Bell  and  Brinley  were  authorized  to  act  as  its  committee, 
was  the  only  competent  evidence  of  its  proceedings;  and  it 
was  also  insisted  that  the  agreement,  if  admissible  at  all, 
should  have  been  produced  as  original  evidence  of  the 


40  NEW  JERSEY  SUPREME  COURT. 

Ortley  v.  Chadwick. 

plaintiff's  title  before  he  rested  his  case.  These  objections 
eeein  to  rest  on  the  assumption  that  the  agreement  which 
was  signet!  by  Bell  was  offered  to  show  that,  at  the  date 
thereof,  the  proprietors  supposed  aud  admitted  that  the 
Gordon  survey  covered  the  land  now  in  dispute.  I  find 
nothing  in  the  case  to  show  for  what  purj>ose  it  was  offered  ; 
but  if  it  be  taken  for  granted  that  this  was  the  object,  I  do 
not  perceive  that  the  minute  of  the  council  was  of  any  im- 
portance. The  council  of  proprietors  is  not  the  owner  of 
the  land,  and  conveyed  no  title  to  it.  Its  duty  is  to  examine 
the  title  of  individual  claimants  to  undivided  rights,  and  if 
found  to  be  regular,  to  authorize  and  approve  setting  off  to 
them  in  severalty,  by  proper  surveys,  their  due  quantity  of 
acres  out  of  any  laud  not  l>efore  appropriated  and  set  off 
to  §ome  other  proprietor.  If  the  acts  or  admissions  of  Bell 
and  Briuley,  or  of  any  other  proprietors,  were  competent 
evidence,  as  against  the  defendant,  to  show  that  before  the 
making  of  his  survey  they  believed  the  land  was  included 
within  a  prior  survey,  which  it  is  not  necessary  to  decide,  it 
was,  as  the  acts  and  admissions  of  individual  proprietors, 
made  in  opposition  to  their  interest,  which  were  as  properly 
proved  by  the  agreement  itself  as  by  the  most  formal  act  of 
the  council. 

But  there  is  another  purpose  for  which,  it  appears  by  the 
case,  this  paj>er  might  have  l>een  proj>erly  offered  when  it 
was  revived,  and  for  which  purpose  we  must  presume  it 
was  offered,  and  that  was  to  explain  and  rebut  the  evidence 
produced  by  the  defendant.  It  was  a  document  connected 
with  the  survey  of  123  acres  produced  by  him,  and  by 
virtue  of  which  there  was  evidence  that  survey  was  made.  It 
was  therefore  of  itself,  and  whether  authorized  in  fact  by  the 
council  or  not,  comjietent  to  explain  the  circumstances  under 
which  that  survey  was  made.  It  was  also  competent  to  go 
to  the  jury,  as  tending  to  show  that  the  defendant  may  have 
mistaken  or  misrepresented  what  Ortley  said  alxnit  it. 
What  eff«-ct  it  wan  entitled  to  have  was  a  question  for  the 
court  and  jury,  which  we  must  presume  they  decided  cor- 


JUNE  TERM,  1862.  41 


Howland  v.  Adrain. 


rectly.  I  am  therefore  of  opinion  that  it  be  certified  to  the 
Circuit  Court  that  the  agreement  was  legal  evidence  when  it 
was  offered. 


EOBEET  HOWLAND  v.  KOBEET  ADKAIN. 

1.  A  notice  of  protest  should  sufficiently  describe  a  note  to  apprize  the 
party  to  whom  the  notice  is  sent  what  note  is  meant.     If  he  is  not 
misled  by  it,  but  understands  what  note  is  referred  to,  it  is  sufficient. 
Although  it  may  not  give  all  the  essential  parts  of  the  note,  or  may 
describe  it  in  some  respects  inaccurately,  the  description  must  be  so 
full  and  true  as  to  identify  it.     To  render  a  variance  fatal,  it  must  be 
such  that,  under  the  circumstances  of  the  case,  the  notice  conveys  to 
the  endorser  no  sufficient  knowledge  of  the  note  which  has  been  dis- 
honored.    No  precise  form  of  words  is  necessary  in  such  a  notice,  but 
the  language  must  be  such  as  to  convey  notice  of  what  the  bill  or  note 
is,  and  that  payment  of  it  has  been  refused. 

2.  Each  party  has  a  day  for  giving  notice,  that  is  the  whole  day  on  which 
he  receives  notice,  to  prepare  his  notice  to  the  party  liable  to  him. 
He  must  put  it  in  the  office  in  time  to  go  by  the  mail  of  the  next  day 
closing  after  business  hours  commenced,  if  there  be  such  mail.     The 
party  sending  the  notice  must  mail  it  on  the  next  day  after  he  receives 
it,  although  the  party  from  whom  he  lias  received  notice  has  not  taken 
all  the  time  the  Jaw  allowed  him  for  giving  the  notice.     He  cannot 
avail  himself  of  the  extra  diligence  of  subsequent  endorsers  as  an 
excuse  for  his  own  delay. 

3.  What  is  reasonable  diligence  in  endeavoring  to  ascertain  the  residence 
of  the  endorser  must  depend  upon  the  circumstances  of  each  case. 
What  would  be  sufficient  in  one  case,  would  fall  far  short  in  another. 

4.  If  the  notice  is  sent  by  the  mail  of  the  next  day  after  ascertaining  the 
residence,  when  due  diligence  has  been  used,  that  will  be  sufficient. 


In  case.     Case  certified  from  the  Middlesex  Circuit.     The 
facts  appear  sufficiently  in  the  opinion  of  the  court. 

Argued  at  February  term,  1862,  before  WHELPLEY,  Chief 
Justice,  and  Justices  ELMER  and  VAN  DYKE. 


42  NEW  JERSEY  SUPREME  COURT. 


Howland  v.  Adrain. 


For  the  plaintiff,  J.  P.  Bradley. 
For  the  defendant,  Robert  Adrain. 

CHIEF  JUSTICE.  This  is  an  action  against  the  defendant, 
as  endorser  of  a  promissory  note,  made  by  S.  B.  Driggs, 
payable  to  the  order  of  the  defendant,  for  $500,  due  on  the 
4th  September,  1860,  and  endorsed  by  defendant  for  the 
accommodation  of  Driggs.  The  note  was  deposited  by  the 
plaintiff,  through  his  attorney  in  fact,  F.  H.  Wolcott,  in  the 
Bank  of  New  York  for  collection.  Driggs,  the  maker,  had 
a  place  of  business  in  New  York,  where,  when  the  note  be- 
came due,  demand  of  payment  was  made  by  the  notary  of 
the  bank,  the  holders  thereof.  The  case  is  before  us,  on  the 
certificate  of  the  judge  who  tried  the  cause,  upon  the  point, 
whether  notice  of  nonpayment  was  given,  as  required  by  law. 

The  note  bears  dale  in  New  York.  The  defendant,  when 
the  note  was  made  and  became  due,  resided  in  New  Bruns- 
wick, in  this  state. 

Two  points  were  made  on  the  argument  by  the  defendant. 

1st.  That  there  was  no  notice  of  nonpayment  given  to  him 
in  time. 

2d.  That  the  notice  relied  upon,  if  in  time,  was  not  suffi- 
cient. Wolcott,  the  attorney  of  the  plaintiff,  who  was  the 
next  endorser  after  the  defendant,  had  a  place  of  business  in 
New  York,  but  resided  at  Newtown,  Long  Island.  The 
notary  made  no  inquiry  for  Adrain,  but  not  finding  his  name 
in  the  directory,  mailed  tlie  notice  for  Adrain  in  an  envelope 
addressed  to  Ilobt.  Howland,  care  of  F.  H.  Wolcott,  88  Wall 
Street,  Now  York,  and  it  was  put  in  the  mail  on  tlie  morning 
of  the  5th  of  September.  This  was  received  by  Mr.  Wol- 
cott, at  Newtown,  on  the  evening  of  the  same  day.  On  the 
morning  of  the  same  day,  he  called  at  the  Bank  of  New 
York,  and  was  there  informed  that  the  note  had  been  pro- 
tested, and  took  the  note  and  left  it  with  his  attorney,  Mr. 
Jackson,  with  instructions  to  commence  proceed  ings  imme- 
diately. He  made  no  inquiry  for  the  residence  of  Adrain. 


JUNE  TERM,  1862.  43 


Rowland  v.  Adrain. 


He  says  Driggs  did  inform  him  that  defendant  was  a  lawyer, 
and  resided  in  New  Jersey,  but  does  not  recollect  that  he 
gave  him  his  post-office  address.  On  the  6th,  he  left  the 
notice  he  received  at  Newtown  on  the  table  of  Mr.  Jackson, 
but  did  not  see  him. 

Mr.  Jackson  says,  that  on  the  5th,  he  prepared  a  summons 
and  complaint  to  serve  on  Adrain  in  New  York,  but  could 
not  find  his  name  in  any  of  the  directories  he  consulted; 
that  he  made  no  inquiries  on  the  5th  for  Adrain,  but  on  the 
morning  of  the  6th,  it  occurred  to  him  that  the  defendant 
might  reside  in  New  Jersey ;  that  he  then  went  to  the  office 
of  the  New  Jersey  Railroad  Company,  in  the  Exchange,  and 
inquired  for  him,  but  got  no  information ;  that  he  then  went 
to  the  law  office  of  Hardenburgh  &  Rutgers,  who  were  resi- 
dents of  New  Jersey,  but  they  were  not  found,  and  about 
four  o'clock  he  went  to  Driggs'  office,  and  thus,  about  half 
past  four  or  five  o'clock,  learned  that  the  defendant  resided  in 
New  Brunswick. 

At  half  past  nine,  on  the  morning  of  the  seventh,  he 
mailed  the  following  letter  to  the  defendant  in  time  for  the 
mail  that  went  at  four  o'clock  p.  M. 

"  48  WALL,  STEEET,  NEW  YOEK  CITY, 

Sept.  7,  1860. 
Robert  Adrain,  esq. 

Dear  sir, — Day  before  yesterday,  F.  H.  Wolcott,  esq.,  the 
attorney  of  R.  S.  Rowland,  esq.,  placed  in  my  hands  a  note 
for  collection,  the  note  being  for  $500,  and  payable  to  your 
order  September  1,  1860.  That  note  has  been  protested  at 
the  Bank  of  New  York,  and  notice  thereof  sent,  of  course, 
to  you  and  to  Mr.  Rowland.  As  I  am  instructed  to  collect 
the  amount  at  once,  I  write  to  inquire  if  you  are  disposed  to 
pay  the  note,  with  the  usual  costs  of  protesting  and  collec- 
tion, together  with  interest,  and  thus  render  any  further  pro- 
ceeding unnecessary,  &c.,  &c. 

(Signed)  Jos.  C.  JACKSON, 

Atfy  of  Robt.  H&wland." 


44  NEW  JERSEY  SUPREME  COURT. 

Howland  v.  Adrain. 

Ill  his  reply,  dated  the  8th,  to  this  letter  of  Mr.  Jackson^ 
the  defendant  says:  I  certainly  presumed  that  the  note  re- 
ferred to  had  been  paid,  as  I  had  no  notice  of  protest,  nor 
was  any  sent  to  me  at  this  place.  Mr.  Driggs  is  absent  for 
a  day  or  two,  &c.,  <&c.,  &c. 

A  notice  should  sufficiently  describe  a  note,  to  apprize  the 
party  to  whom  it  is  sent  what  note  is  meant.  If  he  is  not 
misled  by  it,  but  understands  what  note  is  referred  to,  it  is 
sufficient.  Although  it  may  not  give  all  the  essential  parts 
of  the  note,  or  may  describe  it  in  some  respects  inaccurately, 
the  description  must  i>e  so  full  and  true  as  to  identify  it. 

To  render  a  variance  fatal,  it  must  l>e  such  that,  under  the 
circumstances  of  the  case,  the  notice  conveys  to  the  endorser 
no  sufficient  knowledge  of  the  note  which  has  been  dis- 
honored. No  precise  form  of  words  is  necessary  in  such  a 
notice,  but  the  language  must  be  such  as  to  convey  notice  of 
what  the  bill  or  note  is,  and  that  payment  of  it  has  been  re- 
fused. Hartley  v.  Case,  4  B.  &  C.  339 ;  Rceddy  v.  Seixa*,  2 
Johns.  Ca.  337  ;  Mills  v.  Bank  U.  8.,  11  Wheat.  431 ;  Cayuga 
Rank  v.  Warden,  1  Cbwwtoc&417. 

Extraneous  circumstances  may  be  shown  to  prove  that  the 
notice  could  not  have  misled  the  endorser,  as  that  there  was 
but  one  note  of  that  date  of  that  amount.  Any  evidence 
showing  that  the  endorser  was  in  fact  notified  of  the  dis- 
honor of  that  note  is  admissible.  McKniyht  v.  Lewis,  5  Barb. 
681 ;  Cayuga  Bank  v.  Warden,  2  Selden  19. 

It  is  manifest  that  the  defendant  wits  not  misled  by  the 
letter  of  Jackson  ;  it  is  not  pretended  that  there  was  any 
other  note  of  that  description  upon  which  he  was  endorser, 
*ave  that  of  which  Driggs  was  the  maker.  Kilgore  v.  Bulk- 
ley,  14  Conn.  362. 

If  the  notice  did  its  office,  it  was  surely  sufficient. 

The  sufficiency  of  the  notice  is  to  l>e  decided  by  the  laws 
of  New  York.  Aymar  v.  Sheldon,  12  Wrnd.  439;  Gen-roll 
v.  Upton,  3  Cbmstoclc  272;  S.  C.,  2  Sand.  Sup.  Ct.  172. 

The  two  most  recent  wises  in  New  York  are  The  Home 
Inmtraiioc  Company  v.  Green,  19  N.  Y.,  5  Smith  519,  and 


JUNE  TERM,  1862.  45 

Rowland  v.  Adrain. 

Hodges  v.  Shuler,  22  New  York,  8  Smith  118.  In  the  former 
case,  the  notice  omitted  the  name  of  the  maker  of  the  note, 
but  was  correct  in  other  respects.  It  was  shown  that,  about 
the  time  of  delivering  the  notice  to  the  defendant,  the  same 
notary  served  a  number  of  other  notices  of  protest  upon  him. 
There  was  no  evidence  to  show  whether  the  defendant  had 
been  misled  or  not.  The  Court  of  Appeals  held  the  notice 
insufficient. 

In  Hodges  v.  Shuler,  the  same  court  held  a  notice  good, 
although  it  did  not  truly  give  the  name  of  the  maker,  de- 
scribing him  as  S.  Henshaw,  treasurer,  without  stating  of 
what  company,  the  note  being  that  of  the  company.  The 
court  held  it  good  because  the  defendant  was  contractor  with 
the  company,  and  the  note  had  been  given  to  him  in  pay- 
ment by  the  company,  and  he  must  therefore  have  known 
who  the  maker  was;  in  fact  the  extraneous  evidence  clearly 
showed  that  the  defendant  had  not  been  misled  by  the  defec- 
tive notice,  and  that  evidence  for  this  purpose  was  admis- 
sible. 

This  case  is  distinguishable  from  that  of  The  Home  Insu- 
rance Company  v.  Green,  on  the  ground  that  the  proof 
showed  that  defendant  knew  what  note  was  intended  with 
reasonable  certainty.  Indeed  that  case  seems  hardly  reconcil- 
able with  the  current  of  authorities,  or  even  with  the  cases 
cited  by  the  court  in  its  support.  Perhaps  it  may  be  sup- 
ported upon  the  ground  that  a  mistake  in  the  name,  or  the 
omission  of  it  altogether,  should  be  held  fatal,  inasmuch  as 
the  object  of  the  notice  is  to  enable  the  endorser  to  look  after 
the  maker  immediately  and  secure  himself. 

It  has  always  been  held  that  it  is  for  the  defendant  to 
show  the  existence  of  other  notes  to  which  the  notice  might 
apply.  7  Mees.  &  Wets.  436;  S.  C.,  8  Ib.  252;  StocJcman 
v.  Parr,  11  Mees.  &  Wels.  810;  and  all  the  cases  proceed 
upon  the  ground  that  the  notice  is  given  to  one  who  either 
has,  or  ought  to-  have  a  knowledge  of  the  notes  he  has  en- 
dorsed. The  court,  in  the  case  in  5  Smith,  puts  itself  upon 
the  ground  that  the  notice  is  to  be  full,  so  as  to  aid  a  defec- 

VOL.  i.  C 


-46  NEW  JERSEY  SUPREME  COU1U\ 

Howland  v.  Adrain. 

tive  memory.  In  that  respect  I  think  it  a  departure  from 
the  rule  established  in  other  cases,  and  ought  not  to  be  fol- 
lowed. 

The  remaining  question  is,  was  the  notice  sent  in  time? 
The  Bank  of  New  York  was  the  holder  of  the  note,  and 
through  its  notary  gave  notice  to  the  plaintiff  on  the  5th 
September,  by  whom  it  was  received  on  the  same  day;  in 
addition  he  had  notice  early  on  the  morning  of  the  same 
day  from  the  bank,  and  took  the  note  into  his  custody.  The 
bank,  for  the  purpose  of  giving  notice,  is  to  be  considered  a 
distinct  holder,  although  it  held  the  note  only  for  collection, 
and  has  a  day  to  give  notice  to  its  customer.  Robaon  v. 
Bennett,  2  Taunton  388 ;  Ldngdak  v.  Trimmer,  15  East  291  ; 
Howard  v.  /«»,  1  Hill  263 ;  Bank  of  U.  S.  v.  Davis,  2  Hitt 
451  ;  Hayncs  v.  Blrks,  3  Bos.  &  Pul.  599 ;  Story  on  Prom. 
Notes,  §  326. 

Each  party  has  a  day  for  giving  notice,  that  is  the  whole 
day  on  which  he  receives  notice,  to  prepare  his  notice  to  the 
party  liable  to  him.  He  must  put  it  in  the  office  in  time  to 
go  by  the  mail  of  the  next  day  closing  after  business  hmirs 
commence,  if  there  l>e  such  mail.  Howard  v.  Ives,  1  Hill 
263;  Slory  on  Prom.  Notes,  §  327  ;  Sussex  Bank  v.  Baldwin, 
2  H<irr.  487  ;  Buryess  v.  VrecUind,  4  Zab.  71 ;  Edwards  on 
BUI*  617,  and  cases  there  cited,  note  4. 

The  party  sending  the  notice  must  mail  it  on  the  next  day 
after  he  receives  it,  although  the  party  from  whom  he  has 
received  notice  has  not  taken  all  the  time  the  law  allowed  him 
forgiving  the  notice.  1  Ie  cannot  avail  himself  of  the  extra  dili- 
gence of  subsequent  endorsers  as  an  excuse  for  his  own  delay. 
Turner  v.  LcecJt,  4  11.  &  Aid.  451  ;  Harrixon  v.  Ruscoe,  15 
Mees.  &  Wfls.  251  ;  Story  on  Prom.  Notf*,  §  332. 

Ax  ha*  already  Ix'cn  stated,  both  the  bank  und  the  plnin- 
ntl'lii'l  notice,  at  an  early  hour  on  the  5th  September,  and 
the  plaintiff,  on  the  morning  of  the  5th,  left  the  note  with  his 
attorney  to  IKJ  proceeded  on.  Neither  the  plaintiff's  agent, 
Wolcott,  or  the  attorney  made  any  inquiry  to  ascertain  the 
residence  of  the  defendant  on  tlie  5th,  although  it  must 


JUNE  TERM,  1862.  47 


Howland  v.  Adrain. 


liave  been  known  to  Wolcott  that  the  drawer  had  a  place  of 
business  in  the  city,  where  the  inquiry  could  have  been  made 
with  every  probability  of  success.  Wolcott  knew  that  the 
note  was  endorsed  by  defendant  for  the  accommodation  of 
Driggs,  and  had  been  told,  by  him  that  he  resided  in  New 
Jersey.  He  gave  no  such  information  to  the  attorney,  but 
suffered  him  to  grope  his  way  in  the  dark,  when  he  might 
have  enlightened  him  in  a  moment.  The  attorney  spent  the 
5th  September  in  drawing  papers  for  a  suit  against  defend- 
ant in  New  York,  when  Wolcott  well  knew  he  resided  in 
New  Jersey.  No  inquiry  was  made  on  that  day.  On  the 
6th,  the  attorney  began  his  inquiries,  it  occurring  to  him 
that  he  might  live  in  this  state ;  but  he  made  no  inquiry  of 
the  maker,  or  at  his  place  of  business,  until  late  in  the  after- 
noon of  that  day,  when  he  immediately  got  the  information, 
and  sent  his  letter  in  time  for  the  mail  of  the  next  day,  the 
8th  September. 

Wolcott,  the  holder  of  the  note,  who  had  control  of  it, 
and  Jackson,  his  attorney,  were  guilty  of  laches :  neither  of 
them  used  due  diligence  to  ascertain  the  residence  of  the 
defendant.  It  is  perfectly  evident  that  if  they  had  done 
what  they  ought  to  have  done — availed  themselves  of  the 
means  in  their  reach — they  would  have  discovered  the  resi- 
dence of  defendant  on  the  5th  September,  so  as  to  send  notice 
to  him  on  the  6th. 

What  is  reasonable  diligence  in  endeavoring  to  ascertain 
the  residence  of  the  endorser,  must  depend  upon  the  circum- 
stances of  each  case.  What  would  be  sufficient  in  one,  would 
fall  far  short  in  another.  Story  on  Prom.  Notes,  §  335. 

If  the  notice  is  sent  by  the  mail  of  the  next  day  after  as- 
certaining the  residence,  when  due  diligence  has  been  used, 
that  will  be  sufficient. 

In  Rawdon  v.  Redfield,  2  Sand.  Sup.  Ct.  Rep.  178, 
Casey,  Chief  Justice,  states  the  rule  to  be,  "that  if  the  notary 
inquire  of  persons  who,  from  their  connection  with  the 
transaction  are  likely  to  know  the  residence  of  the  endorser, 
and  are  not  interested  to  mislead  the  notary,  and  he  acts  on 


48  NEW  JERSEY  SUPREME  COURT. 

a  ^ 

Rowland  v.  Adrain. 

information  thus  obtained,  it  is  due  diligence  i>n  his  part. 
Where  the  inquiry  cannot  be  made  of  any  of  the  parties, 
the  notary  should  go  among  the  business  men  of  the  place, 
and  make  a  thorough  inquiry  at  places  of  public  resort, 
and  among  such  j>ersons  as  would  be  likely  to  know  the  resi- 
dence of  the  endorser."  Spencer  v.  Bank  of  Salina,  3 
Hill  520. 

The  party  should  seek  the  best  information  in  his  power, 
and  not  resort  to  inferior  sources  before  exhausting  the  su- 
perior. 

The  letter  of  Jackson  was  never  intended  as  a  notice  of 
protest — that  is  apparent  from  its  tenor.  It  states  that  » 
notice  of  protest  had  been  sent  to  him :  it  was  a  mere  dun 
letter,  but  nevertheless,  if  it  was  sufficient  as  such,  and  in- 
due time,  that  can  make  no  difference.  This  fact  is  noticed 
as  accounting  for  the  evident  want  of  diligence  of  Jackson, 
the  attorney — he  only  desired  to  apprize  defendant  that  the 
note  must  be  paid,  or  he  would  be  sued. 

I  think  that,  owing  to  want  of  diligence  in  ascertaining  the 
residence  of  defendant,  the  notice  was  one  day  too  late.  It 
should  have  been  mailed  on  the  6th  September. 

There  can  be  no  doubt  that  the  demand  of  payment  was 
properly  made. 

The  court  had  a  right  to  infer,  from  the  evidence,  that 
the  letter  was  put  in  the  post-office  on  the  7th.  Whether  it 
was  put  in  the  mail  on  the  7th  or  8th  can  make  no  differ- 
ence— that  was  no  fault  of  the  holder.  Story  on  Prom.  Notes, 
§328. 

1  he  |>ostmnrk  is  at  Ix-st  but  prima  fade  evidence  that  it 
was  not  put  in  the  mail  bag  until  the  8th,  not  that  it  was  not 
put  in  the  office  until  that  day. 

Circuit  Court  advised  to  give  judgment  for  the  defendant. 

ELMER,  J.  The  defendant,  who  resides  at  New  Bruns- 
wick, in  tliis  state,  was  sued  as  the  endorser  of  a  pro- 
missory note  for  $500,  drawn  by  S.  B.  Driggs,  dated  at 
New  York,  (ay able  September  1st,  1860.  The  note  wa» 


JUNE  TERM,  1862.  49 


Howland  v.  Adrain. 


•placed,  by  the  agent  of  the  plaintiff,  in  the  Bank  of  New 
York  for  collection.  Not  being  paid  at  maturity,  the  notary 
demanded  payment  at  the  office  of  the  maker,  on  the  4th  of 
September,  but  not  finding  the  endorser's  name  in  the  di- 
rectory, made  no  inquiry  for  him  •  but  on  the  5th,  put  notices 
of  protest  for  the  plaintiff  and  defendant  into  the  post-office, 
directed  to  the  plaintiff's  agent,  who  received  them  the  same 
day.  The  agent,  happening  to  call  at  the  bank  on  the  5th, 
was  informed  of  the  protest,  and  took  the  note  and  protest  to 
Mr.  Jackson,  his  attorney,  with  directions  to  collect  it.  The 
notary's  notice  to  the  defendant  was  not  left  with  the  attorney 
until  the  6th,  and  was  not  sent  to  the  defendant  until  the 
10th  or  llth.  The  plaintiff's  agent  testified  that  he  did  not 
know  the  defendant's  address,  but  he  had  been  informed,  by 
Mr.  Driggs,  that  he  was  a  lawyer,  and  resided  in  New  Jersey. 
This  information,  however,  was  not  communicated  to  Mr. 
Jackson,  who  stated  that  he  did  not  know  the  residence  of 
the  defendant;  but  supposing  him  to  reside  in  New  York, 
prepared  a  summons,  which,  in  consequence  of  his  name  not 
being  found  in  the  directory,  was  not  used.  On  the  6th  it 
occurred  to  him  that  he  might  reside  in  New  Jersey,  and  on 
the  morning  of  that  day  he  made  some  inquiries  without  suc- 
cess, and  about  four  o'clock  of  that  day  he  went  to  the 
office  of  Driggs,  and  was  there  informed  of  the  proper  address. 
No  notice,  however  was  sent  on  that  day,  the  mail  for  New 
Brunswick  closing  at  half-past  four  in  the  afternoon,  and 
also  at  five  in  the  morning.  On  the  7th,  Mr.  Jackson  ad- 
dressed a  letter  to  the  defendant,  which  he  says  he  put  in 
the  mail  on  that  day  about  half-past  nine  o'clock.  Upon 
being  produced,  the  letter  bears  the  postmark  of  the  8th, 
and  it  is  testified  by  the  defendant  that  he  did  not  receive  it 
until  the  8th.  The  postmaster  of  New  Brunswick  also  stated 
circumstances  tending  to  show  it  was  not  mailed  until  the 
8th.  But  the  judge,  who  by  consent  tried  the  cause  without 
a  jury,  found,  as  matter  of  fact,  that  the  letter  was  mailed 
on  the  7th,  about  nine  and  a  half  o'clock  A.  M.,  in  time  for  the 
afternoon  mail,  and  I  am  opinion  that  there  is  nothing  in 


50  NEW  JERSEY  SUPREME  COURT. 

Rowland  T.  Adrain. 

the  case  which  will  justify  us  in  holding  that  this  tindii  g 
ought  to  be  set  aside  as  contrary  to  the  evidence. 

The  letter  sent  states  that  he  had  received  for  collection 
a  note  for  $500,  payable  to  defendant's  order  Septeml>er  IsU 
1860,  which  had  U-en  protested,  and  notice  sent  to  defend- 
ant, and  inquiring  if  he  would  pay  the  amount,  with  the 
costs  of  protest  and  interest,  and  thus  render  further  pro- 
ceedings unnecessary.  To  this  the  defendant  immediately 
answered,  saying:  tl  I  certainly  presumed  that  the  note  re- 
ferred to  had  been  paid,  as  I  received  no  notice  of  protest,, 
nor  was  any  sent  to  me  at  this  place.  Mr.  Driggs  is  absent 
for  a  day  or  two ;  as  soon  as  he  returns  I  will  at  once  give 
you  the  answer  requested."  The  defendant  testified,  "  when 
I  received  the  notice,  I  supposed  that  the  note  referred  to- 
was  the  note  of  Mr.  Driggs  now  in  suit,  but  was  not  certain 
of  it.  I  now  know  that  there  was  no  other  note  of  his  for 
$600  which  fell  due  at  that  time,  but  I  did  not  know  so- 
then." 

Two  questions  were  discussed  upon  the  argument  upon 
which  it  is  proper  to  express  our  opinion.  First,  was  the 
notice  mailed  by  Mr.  Jackson,  on  the  7th,  in  time?  The 
holder  of  the  note,  through  his  agent,  having  received  notice 
of  the  protest  on  the  5th,  was  Imund  to  send  notice  thereof 
to  the  defendant  by  the  mail  which  closed  after  the  com- 
mencement of  business  hours  on  the  next  day.  Rang  igno- 
rant of  the  defendant's  address,  that  fact  will  excuse  delay  H> 
long  as  that  ignorance  continues  without  his  neglecting  to  use 
the  ordinary  means  fur  acquiring  information.  Wood- 
ruff v.  JJaygrit,  «S/>encer  526 ;  Jiyles  on  Mills,  by  Hhannoood, 
345,  ami  cases  cited.  The  maker  of  the  note,  it  appears, 
had  an  ofh'<«  in  the  city,  where,  during  his  temjx>rary  ab- 
sence, it  was  duly  presented  by  the  notary,  and  which  Mr. 
Jackson  could  have  easily  found  during  the  business  hours  of 
the  5th,  and  which  he  no  doubt  would  have  found  had  he 
been  aware  that  notice  of  protest  had  not  been  forwarded  to- 
the  defendant.  To  this  place  he  went,  after  it  was  too  late 
to  send  the  notice  by  the  mail  of  the  6th,  and  here  he  was 


JUNE  TERM,  1862.  51 


Rowland  v.  Adrain. 


at  once  informed  of  the  defendant's  address.  It  was  the 
natural  and  proper  place  at  which  inquiry  should  have  been 
at  once  made.  To  sanction  the  neglect  to  do  this  would  be 
equivalent  to  holding  that  no  diligence  at  all  was  necessary. 
The  plaintiff's  agent  had  been  informed  that  his  residence 
was  in  New  Jersey;  and  had  this  information  been  commu- 
nicated to  Mr.  Jackson,  he  would  have  known  at  once  that 
something  more  was  necessary  than  to  look  into  the  direct- 
ory. I  am  therefore  of  opinion  that  notice  was  not  sent  in 
due  time,  and  that  it  must  be  certified  to  the  Circuit  Court 
that  notice  of  the  nonpayment  of  the  note  was  not  given  to 
the  endorser,  as  required  by  law,  to  charge  him  with  the 
payment. 

The  other  question  discussed  was,  whether,  supposing  the 
notice  to  have  been  sent  in  due  time,  was  it  sufficient? 

At  one  time  the  English  courts  seemed  disposed  to  hold 
that  a  notice  must  be  sufficient  to  inform  the  party,  either  in 
express  terms  or  by  necessary  implication,  that  the  bill  or 
note  had  been  dishonored,  and  that  he  was  looked  to  for  pay- 
ment. Hartley  v.  Case,  4  B.  &  C.  339  ;  Solarte  v.  Palmer,  7 
Bing.  530 ;  1  Bing.  N.  C.  194.  And  had  Mr.  Jackson's  letter 
stood  alone,  without  other  evidence  it  would  have  been  in- 
sufficient. Home  Ins.  Co.  v.  Green,  19  N.  F.  (5  Smith]  519. 
But  it  seems  now  to  be  the  decided  weight  of  authority, 
both  in  England  and  America,  and  I  think  it  is  the  true 
principle,  that  as  the  notice  may  be  verbal  or  written,  and 
no  particular  form  is  necessary,  if  it  appears  to  the  satisfac- 
tion of  the  court  and  jury  that  the  party  to  be  charged  was 
in  fact  apprized  by  the  notice  of  the  dishonor  of  the  note  in 
question,  and  that  he  was  expected  to  pay  it,  the  notice  will 
be  sufficient,  and  an  omission  or  misdescription  which  did  not 
mislead  him  will  be  immaterial.  Burgess  v.  Vreeland,  4 
Zah.  71 ;  Mills  v.  Bank  of  U.  S.t  1  Wheat.  425;  Rochester 
Bank  v.  Gould,  9  Wend.  279  ;  Beals  v.  Peck,  12  Barb.  250  ; 
Youngs  v.  Lee,  2  Kern.  554;  Cayuga,  Bank  v.  Worden,  2 
Seld.  26  ;  Snow  v.  Curtis,  2  Mich.  238 ;  Stratton  v.  Breath, 


52  NEW  JERSEY  SUPREME  COURT. 


Howland  v.  Adrain. 


7  Met*.  A-  IIW«.  436  ;  Smith  v.  Boulton,  1  Hart  &  Wahn.  3 ; 
Jfefferdk  v.  A/pen,  11  .En^.  L.  and  E.  R.  599. 

Had  the  notice  stated  who  was  the  maker  of  the  note,  it 
would  have  been  good  of  itself.  The  letter  written  by  the 
defendant,  on  receiving  it,  shows  that  he  knew  this.  He  had 
endorsed  no  other  note  of  that  amount  and  date  for  Driggs  or 
any  other  person.  U|x)ii  the  whole  case,  I  think  the  court 
sitting  for  the  jury  would  have  been  warranted  in  holding 
that  the  defendant  was  in  fact  apprized  of  the  dishonor  of  the 
note  in  question,  and  was  not  misled  by  the  omission  to  state 
the  maker's  name.  It  is  true,  as  argued  by  the  defendant, 
that  proof  of  his  being  fully  aware  that  this  note  was  not 
paid,  and  had  been  protested,  would  not  have  been  sufficient 
to  charge  him.  He  is  entitled  to  express  notice  of  this  fact, 
and  that  he  is  looked  to  for  payment,  and  this  notice  must 
come  from  some  one  interested  in  the  note.  But  this  is 
because,  without  such  a  notice,  he  has  a  right  to  infer  that  the 
holder  is  content  to  hold  the  maker,  without  having  recourse 
to  a  mere  surety.  If  he  receives  a  notice  in  due  time  that  a 
note  he  has  endorsed  is  protested,  he  is  at  once  put  on  his 
guard,  and  if  reasonable  means  of  knowing  what  note  it  is 
are  afforded  him,  can  at  once  take  whatever  steps  he  deems 
necessary  for  his  own  indemnity.  It  might  have  been  better, 
jxjrhaps,  to  have  required  a  precise  written  notice,  accurately 
describing  the  note,  and  expressly  informing  the  endorser  that 
he  was  looked  to;  but  mercantile  usage,  by  which  the  courts 
have  been  guided,  has  not  exacted  this  strictness,  and  it  is  too 
late  now  to  require  more  than  sufficient  reasonably  to  notify 
him  that  he  must  take  care  of  himself. 

The  Circuit  Court  is  advised  to  give  judgment  for  the  de- 
fendant. 

Cmu>  in  llainet  v.  Dvboit,  infra  261. 


JUNE  TERM,  1862.  53 


Town  of  Lambertville  v.  Clevinger. 


THE  INHABITANTS  OF  THE  TOWN  OF  LAMBEETVILLE  v. 
ISAAC  W.  CLEVINGEE. 

1.  The  first  section  of  the  act  of  March  17th,  1858,  in  regard  to  damages 
to  property  in  cases  of  the  alteration  of  the  grades  of  streets  or  high- 
ways (Nix.  Dig.  752),  applies  to  the  alteration  of  a  grade  not  before 
formally  established. 

2.  The  charter  of  Lambertville  provides  that  the  common  council  shall 
not  alter  the  grade  of  any  street  which  has  been  built  upon  and  which 
has  been  fixed  by  lawful  authority,  unless  by  the  consent  of  the  owners 
of  a  majority  of  the  lots,  &c. ;  held,  that  this  provision  applies  only  to 
the  altering  of  a  grade  previously  fixed  by  lawful  authority. 

3.  In   such   action   the   defendants   not  permitted  to  deduct  from   the 
amount  of  damages  sustained  by  the  plaintiff  the  amount  of  benefits 
derived  by  him  from  the  improvement  of  the  street.     The  land  owner 
is  entitled  to  the  benefit  which  he  derives,  in  common  with  other  pro- 
perty holders  on  the  street,  by  the  making  of  the  improvement,  and 
the  benefit  he  receives  in   common  with  others  cannot  be  deducted 
from  his  damages. 

In  error  to  Hunterdon  Circuit  Court. 
For  the  plaintiff  in  error,  C.  A.  Skittman. 
For  the  defendant,  B.  Van  Syckel. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  I  am  satisfied  that  the  charge  of  the  court,  in 
all  the  points  excepted  to,  was  correct,  and  that  the  judgment 
must  be  affirmed.  The  action  was  founded  on  the  act 
approved  March  17th,  1858,  (Me.  Dig.  752)*  the  first  section 
of  whicli  provides,  that  an  action  upon  the  case  shall  lie  in 
behalf  of  any  person  owning  any  house  or  other  building 
standing  and  erected  upon  any  street  or  highway,  the  grade 
whereof  shall  be  or  shall  have  been  altered  by  virtue  of  the 
ordinance,  resolution,  or  other  proceeding  of  the  legislative 
authority  of  any  city,  borough,  or  town  corporate  to  recover 
all  damages  which  such  owner  shall  suffer  by  reason  of  the 
altering  any  such  grade.  It  appeared  that  the  street  upon 
which  the  plaintiff's  house  was  erected  had,  before  the 

*  Rev.,  p.  1009,  \  70. 


54  NEW  JERSEY  SUPREME  COURT. 

Town  of  Lambertville  v.  Cleringer. 

alteration  thereof  complained  of,  been  duly  laid  out,  and  had 
been  for  some  years  opened,  and  that  no  grade  for  the  said 
street  had  been  fixed  by  lawful  authority,  nor  had  the  road 
been  before  worked  upon  by  the  authorities  of  the  town. 
The  working  which  occasioned  the  damage  to  the  plaintiff's 
house,  for  which  the  action  was  brought,  was  done  by  virtue 
of  a  resolution  of  the  town  authorities,  and  consisted  in  filling 
up  the  street  opposite  the  house.  It  was  insisted  for  the 
town,  before  the  Circuit  Court  and  upon  the  argument  here, 
that  altering  the  grade  of  a  street,  as  used  in  the  act  of  1858, 
means  altering  a  grade  which  has  been  before  formally 
established.  In  common  usage  the  grade  of  a  street  is  its 
line  of  ascent  or  descent,  and  this  may  be  changed  at  any 
time,  and  in  practice  is  changed  by  those  charged  with  the 
duty  of  repairing  the  streets.  In  regularly  incorporated 
cities  and  towns,  grades  are  frequently  established  by  ordi- 
nances or  other  regulations;  but  in  the  case  of  highways  in 
the  county,  the  grade  is  no  otherwise  established  than  by 
the  actual  work  on  the  ground.  The  object  of  the  act  was, 
in  accordance  with  the  settled  policy  of  our  laws,  to  compen- 
Mte  the  owners  of  property  for  injuries  occasioned  by  acts 
of  the  public  authorities  for  the  benefit  of  others.  It  is  a 
remedial  act,  and  ought  to  be  interpreted  liberally  rather 
than  strictly.  I  am  therefore  of  opinion  that  there  was  no 
error  in  charging  that  the  grade  of  the  street  upon  which 
the  plaintiff's  house  stood  had  been  altered  by  changing  its 
level,  within  the  true  meaning  of  the  law.  The  third  section 
of  the  act  in  question  provides  that  it  shall  not  refer  to  any 
city  or  town  whose  charter  provides  for  assessing  and  paying 
compensation  to  persons  injured  by  the  making  of  grades 
established  or  to  be  established.  By  the  supplement  to  the 
charter  of  Lambertville,  it  is  provided  that  the  common 
council  shall  not  alter  the  grade  of  any  street  which  has 
been  built  u|x>n,  and  which  has  IHHMI  fixed  by  lawful  au- 
thority, niil«--  by  the  consent  of  the  owners  of  a  majority  of 
the  lots,  nor  without  paying  to  the  owners  of  buildings  the 
damages  to  be  awarded  in  a  manner  prescribed.  This,  it 


JUNE  TERM,  1862.  55 


Town  of  Lambertville  v.  Clevinger. 


was  insisted,  brought  the  case  within  the  third  section,  but 
the  court  charged  that  it  did  not,  and  I  think  correctly. 
The  charter  plainly  provides  for  the  case  of  altering  a  grade 
previously  fixed  by  laAvful  authority,  and  only  for  such  a 
case.  It  does  not  reach  the  plaintiff's  case.  The  alteration 
which  injured  him  was  not  pretended  to  be  made  under  the 
provisions  of  the  charter ;  but  for  the  reason  that  no  grade 
had  been  previously  fixed,  it  was  assumed  that  the  town 
might  change  the  level  of  the  street  at  the  pleasure  of  the 
authorities  without  compensation  to  any  property  owner,  no 
matter  how  great  might  be  the  injury  done  him. 

Exception  was  also  made  to  that  part  of  the  charge  which 
directed  the  jury  that,  in  estimating  the  damages,  they  have  a 
right  to  look  at  the  expense  of  raising  the  house  in  question,, 
and  that  the  defendants  were  not  entitled  to  prove  that  the 
property  was  worth  as  much  after  as  before  the  filling  up  of 
the  street,  taking  into  consideration  the  general  benefit  derived 
by  all  from  the  improvement ;  that  the  plaintiff  was  entitled 
to  the  benefit  which  he  derived,  in  common  with  other  prop- 
erty holders  in  that  street,  by  the  making  of  the  improvement, 
and  that  the  benefit  he  received  in  common  with  others  can- 
not be  deducted  from  his  damages.  This,  however,  was  in 
accordance  with  the  ruling  of  this  court  in  the  case  of  The 
State  v.  Miller,  3  Zab.  383.  The  supplement  to  the  road  act, 
approved  in  1860,  (Nix.  Dig.  751)*  provides  that,  in  assess- 
ing the  damages  sustained  by  the  owner  of  land  taken  when  a 
road  is  laid  out,  such  damages  are  only  to  be  what  he  sustains 
over  and  above  the  advantage  that  will  accrue  to  said  owner. 
But  the  act  by  which  this  action  is  authorized  makes  no  such 
provision,  which  in  such  a  case  as  this  would  be  much  less 
reasonable,  because  the  fifth  section  enacts  that  the  damages 
to  be  paid  shall  be  assessed  not  on  the  community  generally, 
but  upon  the  lands  and  real  estate  benefited,  in  proportion  to 
the  benefits  received;  ^o  that  if  the  plaintiff  did  in  fact  reap  a 
benefit  by  the  alteration  he  will  have  to  pay  a  proper  share  of 

his  own  damages. 

Judgment  affirmed. 

*Rev.,  p.  998,  §  13. 


56  NEW  JERSEY  SUPREME  COURT. 


Brain  r.  Snvder. 


JOHN  BRAIN  AND  PETER  BRAIN  v.  THOMAS  R.  SNYDER. 

In  an  action  of  trespass  quart  clausum  fregit  before  a  justice  of  the 
peace,  the  defendant  pleaded  title  and  a  right  of  way  over  the  close  in 
question.  Upon  such  suit  being  brought  in  this  court,  the  defendant 
filed  six  pleas.  On  motion  to  strike  out  pleas,  it  was 

Held,  that  the  first  plea  of  not  guilty,  not  being  the  same  plea  as 
that  pleaded  before  the  justice,  must  be  stricken  out ;  that  the  second 
plea  of  libtrum  tfntmentum  is  correct ;  that  the  fourth  plea,  that  the 
loan  in  (jun  was  a  public  highway,  is  not  a  plea  of  title,  and  is  not 
good;  that  the  third  and  fifth  pleas,  setting  up  a  right  of  private  way 
by  prescription,  and  a  right  of  private  way  by  grant,  if  wrong,  may 
be  demurred  to,  but  cannot  be  stricken  out  on  motion ;  and  that  the 
•ixth  plea,  that  the  locux  in  qua  was  a  by-way,  and  that  it  had  been 
opened  by  three  of  the  chosen  freeholders,  does  not  amount  to  a  plea 
of  title,  and  must  be  stricken  out. 


In  trespass.     On  motion  to  strike  out  defendant's  pleas. 

Argued  at  Februaiy  term,  1862,  before  Justices  OGDEN, 
VREDENBURGH,  and  BROWN. 

For  plaintiffs,  A.  B.  Woodrnf. 
For  defendant,  John  Hopper. 

The  opinion  of  the  court  was  delivered  by 

VREDENBURGH,  J.  This  is  a  suit  originally  commenced 
before  a  justice  of  the  peace  in  tresj>as.«. 

The  defendant  pleaded  before  the  justice—first,  that  the 
trespasses  complained  of  were  by  parsing  over  a  certain  close, 
which  close,  for  such  pur|>ose,  was  the  close  and  freehold  of 
him,  the  said  defendant;  and  secondly,  that,  on  the  1st  of 
January,  1800,  the  owner  of  the  close  in  which  the  trespasses 
were  committed  did  grant  to  the  owner  of  the  close  under 
whom  the  defendant  held  by  deed,  now  lost,  a  right  of  way 
over  the  close  in  question,  by  virtue-  "of  which  he  did  JKIS.S 
over  the  hcwt  in  quo.  The  defendant,  having  also  filed  with 
the  justice  a  Inmd,  as  required  by  the  statute,  the  justice 
the  suit.  The  plaintiffs  thereupon  commenced 


JUNE  TERM,  1862.  57 

Brain  v.  Snyder. 

this  suit  in  the  Supreme  Court,  and  filed  their  declaration  here 
hi  the  same  terms  as  before  the  justice,  whereupon  the  de- 
fendant lias  come  into  this  court  and  filed  six  different  pleas. 
The  motion  is  now  made  to  strike  out  all  these  six  pleas. 

The  first  reason  assigned  for  striking  them  out  is,  that  none 
of  them  are  the  same  as  those  filed  before  the  justice. 

The  first  plea  is  not  guilty.  As  the  declaration  in  this 
court  is  the  same  as  that  before  the  justice,  it  is  clear,  upon 
the  current  authorities,  that  it  must  be  stricken  out.  2  Green 
471,  and  cases  there  cited. 

The  second  plea  is  liberum  tenementum  generally.  This  is 
correct.  1  Zab.  83. 

The  fourth  plea  is,  that  the  locus  in  quo  was  a  public  high- 
way. This  is  not  a  plea  of  title  of  any  sort.  Chambers  v. 
Wambaugh,  4  Dutcher  531,  and  cases  there  cited;  Campfield 
v.  Johnson,  I  Zab.  83,  and  must  be  stricken  out. 

The  third  plea  is  one  of  a  right  of  private  way  by  pre- 
scription. 

The  fifth  plea  is  of  a  right  of  way  by  grant.  If  there  is 
anything  wrong  in  these  pleas,  it  must  be  taken  advantage  of 
by  demurrer,  and  not  by  motion  to  strike  out. 

The  sixth  plea  is  thai;  the  loeus  in  quo  was  a  by-way,  and 
that  it  had  been  opened  by  three  of  the  chosen  freeholders. 
This  does  not  amount  to  a  plea  of  title,  and  must  be  stricken, 
out.  4  Duteher  309.  The  result  is  that  the  first,  fourth  and 
sixth  pleas  must  be  stricken  out,  and  the  third,  fourth  and 
fifth  pleas  will  stand. 

CITED  in  Hawk  v.  Segraves  et  al.,  5  Vroom  35Q. 


58  NEW  JERSEY  SUPREME  COURT. 


Nixon  v.  Ruple. 


WILLIAM  NIXON  v.  SAMUEL  RUPLE. 

1.  All  parties  are  bound  to  take  notice  of  the  day  appointed  by  law  for 
the  meeting  of  the  commissioners  of  appeal  in  cases  of  taxation ;  but 
if  the  commissioners  meet  at  any  other  time  than  that  appointed  by 
law  such  meeting  must  be  upon  notice,  and  must  also  be  at  the  place 
of  holding  the  town  meeting,  in  order  to  obtain  jurisdiction  of  the 
person  of  the  assessor;  and  they  cannot,  therefore,  without  such  no- 
tice alter  his  assessment. 

2.  The  tribunal  of  the  commissioners  of  appeal  is  a  special  tribunal,  and 
it  is  well  settled  that  such  tribunals  should  show  upon  the  face  of 
their  record  all  facts  necessary  to  give  jurisdiction. 


On  certiorari  to  Hunterdon  Pleas. 

Argued  at  February  term,  1862,  before  Justices  OGDEN, 
VREDENBUBGH,  and  BROWN. 

For  plaintiff,  O.  A.  Allen  and  B.  Van  Syckel. 
For  defendant,  Jo  fin  N.  Voorfiees  and  Van  Fled. 

The  opinion  of  the  court  was  delivered  by 

VREDENBURGH,  J.  This  was  an  action  of  trespass,  brought 
in  the  court  for  the  trial  of  small  causes  by  Ruple  against 
Nixon,  for  taking,  on  the  21st  March,  1859,  twenty-one 
chestnut  posts.  Judgment  was  rendered  for  Ruple,  which 
was  afterwards  affirmed  by  the  pleas  on  appeal,  whereupon 
this  certiorari  was  brought. 

Tine  plaintiff  below  proved,  on  the  trial,  that  the  defendant 
did  Uike  the  \><>-\~. 

The  defendant,  Nixon,  thereupon  proved  that  he  was  a 
constable,  and  took  and  sold  the  posts  by  virtue  of  a  tax  war- 
rant. The  plaintiff  replied  by  proof  that  the  commissioners 
of  ap|H-al  had  remitted  the  tax,  and  that  jie  showed  the  con- 
stable the  transcript  before  the  sale. 

The  first  reason  urged  for  reversal  is,  that  the  commissioners 
of  appeal  had  no  jurisdiction  of  the  matter.  It  appears,  by 


JUNE  TERM,  1862.  59 

Nixon  v.  Ruple. 

the  case,  that  the  tax  in  question  was  a  dog  tax  for  1858. 
The  act  of  April  16th,  1846,  (§  16,  Nix.  Dig.  14,)*  provides 
that  every  person  who  shall  keep  a  dog  shall  be  taxed  fifty 
cents,  and  for  every  additional  dog  one  dollar,  provided  that 
the  inhabitants  of  every  township  may,  at  the  town  meetings, 
lay  an  additional  tax  on  each  dog  not  exceeding  five  dollars. 
It  appears,  by  the  case,  that  on  the  4th  January,  1859,  the 
commissioners  of  appeal  in  cases  of  taxation,  on  an  appeal  to 
them,  adjudged  that  the  sum  of  $3.13  was  illegally  assessed 
against  Ruple,  remitted  the  same  and  gave  a  transcript  for 
the  same ;  and  it  further  appears,  by  the  case,  that  before  the 
constable  sold  under  the  tax  warrant,  Ruple  showed  him  this 
transcript,  and  either  paid  or  tendered  him  all  the  tax  due, 
except  the  $3.13;  and  that  the  property  in  question  was 
thereafter  sold  to  raise  this  $3.13.  The  plaintiff  in  certiorari 
contends  that,  under  this  state  of  facts,  the  commissioners  of 
appeal  had  no  jurisdiction  of  the  matter.  He  avers  that  this 
$3.13  was  raised  by  a  vote  of  the  township,  at  their  annual 
town  meeting,  they  having  voted  to  make  the  dog  tax  under 
the  statute  $3,  instead  of  50  cents,  and  that  the  commissioners 
of  appeal  had  no  jurisdiction  thus  to  review  and  reverse  the 
vote  of  the  inhabitants  at  a  town  meeting.  However  correct 
this  proposition  may  be,  and  upon  which  I  do  not  express 
.any  opinion,  I  can  find  nothing  in  the  case  to  prove  that  this 
three  dollars  was  raised  by  any  such  vote,  or  that  any  such 
tax  was  raised  by  the  town  meeting.  No  such  proof  appear- 
ing, we  are  to  presume  that  it  was  assessed  without  any  such 
vote.  In  such  case  the  commissioners  of  appeal  clearly  have 
jurisdiction. 

The  next  objection  raised  to  the  judgment  of  the  commis- 
sioners of  appeal  is,  that  it  does  not  appear  upon  the  face  of 
their  transcript  that  they  gave  any  notice  of  their  meeting  on 
the  4th  of  January,  1859.  Nix.  Dig.  800,  §  47,f  provides 
that  the  commissioners  of  appeal  shall,  for  the  purpose  of 
discharging  the  duties  of  their  office,  convene  at  the  usual 
place  of  holding  town  meetings  at  such  times  as  they  shall 

*Rev,}  p.  15,  \  6.    ^Rev.,  p.  1148,  \  46. 


60  NEW  JERSEY  SUPREME  COURT. 

Nixon  v.  Ruple. 

appoint,  giving  eight  days'  notice,  in  writing,  at  six  of  the 
most  public  places  in  the  township. 

The  question  is,  whether,  in  this  collateral  proceeding,  we 
can  treat  the  action  of  the  commissioners  as  a  nullity. 

Whether  the  notice  of  their  meeting  is  a  jurisdictional  fact, 
and  should  ap|>car  upon  the  face  of  their  proceedings. 

If  the  question  was  before  us  directly,  it  would  probably 
be  set  aside;  but  the  questions  are  here  collaterally. 

The  commissioners  of  appeal  act  judicially.  They  tryr 
determine,  and  adjudge.  They  had  jurisdiction  of  the  sub- 
ject matter.  Had  they  jurisdiction  of  the  persons  of  the 
parties?  They  had  certainly  of  Ruple.  Had  they  of  the 
other  party  ?  By  express  statute  it  is  made  the  duty  of  the 
•men  ii n.  under  the  penalty  of  ninety  dollars,  to  be  present 
at  such  meeting  to  defend  his  assessment.  The  proceeding, 
therefore,  on  appeal  before  the  commissioners  of  appeal  is  in 
the  nature  of  a  suit  wherein  the  party  appealing  is  plaintiff 
and  the  assessor  is  defendant. 

Now,  can  the  commissioners  of  appeal  get  jurisdiction  of 
the  |>er8on  of  the  assessor  by  meeting  at  any  place  and  at  any 
time  without  giving  him  notice,  and  alter  his  assessment? 

1  think  not,  any  more  than  a  justice  of  the  peace,  without  a 
summons,  can  give  judgment  against  a  defendant.     The  law 
prescribes   the   mode   of   proceeding  of    the   commissioners. 
There  is  one  day  ap|M>inted  by  law,  the  4th  Tuesday  in  No- 
vember, of  which  all  parties  arc  bound  to  take  notice.     If 
they  meet  at  any  other  time,  it  must  be  upon  notice,  and  the 
place  of  meeting  mast  be  that  of  the  place  of  holding  the 
town  meeting. 

Here  it  does  not  ap|>ear  that  the  commissioners  met, 
either  at  the  right  place,  or  gave  any  notice  of  the  time  of 
meeting.  The  only  remaining  question  is,  is  it  necessary 
that  it  should  ap|M-ar  ii(>on  their  transcript.  The  tribunal  of 
the  commissioners  of  appeal  is  a  ~pr.-i.-il  tribunal,  and  it  is 
well  Ketth-d  that  all  such  tribunals  should  show  all  jurisdic- 
tional facts  upon  the  face  of  their  record.  Carron  v.  Martin, 

2  Dute/urGOO. 


JUNE  TERM,  1862.  .61 


Overman  v.  Hoboken  City  Bank. 


It  follows  that  the  transcript  shown  the  constable  showed  no 
remitting  of  the  tax,  the  tax  warrant  remaining  in  full  force,  and 
that,  consequently,  the  judgment  of  the  pleas  must  be  reversed. 

Judgment  reversed. 

CITED  in  State,  Vail's  Ex'rs,  pros.,  v.  Runyon,  12  'Vroom  103. 


HENEY  J.  OVEEMAN  v.  THE  HOBOKEN  CITY  BANK. 

1.  Without  stating  in  the  declaration  that  the  association  called  the 
"  clearing  house  "  is  an  institution  authorized  by  special  legislation,  or 
any  authority  existing  in  such  association,  in  any  way,  to  alter  or 
modify  the  law  merchant  in  regard  to  checks  or  commercial  paper, 
such  association  cannot  be  held  to  have  power  to  make  usages  or  rules 
to  bind  those  who  are  not  parties  to  its  organization. 

'2.  Its  usages  and  rules,  if  not  in  conflict  with  law,  may,  by  tlie  implica- 
tion of  tacit  adoption  in  the  contracts  of  members,  bind  them  in  the 
same  way  that  a  general  usage  of  trade  may  bind  those  who  deal  with 
reference  to  it,  and  who  are  therefore  held  impliedly  to  adopt  it. 
But  those  who  are  not  bound  by  such  usages,  and  have  not  contracted 
with  reference  to  them,  have  no  right  to  avail  themselves  of  them  to 
create  an  obligation  against  those  who  are  parties  to  their  adoption, 
and  bound  by  them  inter  sese  only. 

3.  Customs  and  usages  in  derogation  of  the  common  law  must  be  strictly 
-    pleaded,  and  when  well  pleaded  the  count  must  show  a  case  clearly 

within  the  usage. 

4.  Whether  a  failure  to  return  a  check  (when  sent  to  the  bank  on  which  it 
is  drawn)  in  a  reasonable  time  amounts  to  an  acceptance,  must  always 
depend  on  the  particular  circumstances  of  each  case.  A  failure  to  return 
is  not  of  necessity  an  acceptance ;  they  are  not  convertible  terms. 

5.  In  order  that  a  promise  to  accept  a  bill  shall  amount  to  an  acceptance, 
the  holder  must  have  taken  the  bill  on  the  faith  of  the  promise,  and 
until  such  negotiation  there  is  no  acceptance ;   it  amounts  to  nothing 
but  a  contract  between  the  drawer  and  drawee  collateral  to  the  bill, 
which,  like  all  other  contracts,  must  have  a  consideration  to  support  it. 

On  demurrer  to  declaration. 
Argued  at  February  Term,  1862. 
For  the  plaintiff,  8.  B.  Ransom. 

For  the  defendants,  /.  H.  Lyons  and  1.  W.  Scudder. 
VOL.  i.  D 


62  .          NEW  JERSEY  SUPREME  COURT. 

Overman  v.  Iloboken  City  Bank. 

The  opinion  of  the  court  was  delivered  by  the 

CHIEF  JUSTICE.  This  is  a  s|>eeial  action  on  the  case  against 
the  defendant,  upon  whom  Andre  &  Brother  had  drawn  a 
check,  dated  October  29th,  1859,  for  $2730. 

The  case  is  before  us  upon  demurrer  to  the  plaintiff's  de- 
claration. The  defendant  has  taken  issue  on  the  first  and 
fifth  counts  of  the  declaration,  and  demurred  to  the  second, 
third,  and  fourth  counts. 

The  difference  in  the  frame  of  these  three  counts  will  ren- 
der an  examination  of  each  necessary  to  the  proper  decision 
of  the  case. 

The  second  count,  after  alleging  the  drawing  of  the  check, 
and  its  delivery  to  the  plaintiff,  who  was  its  payee,  proceeds 
to  state  that  at  that  time  it  was,  and  ever  since  has  been  the 
established  rule,  use,  and  custom  of  the  association  of  banks, 
called  the  "clearing  house"  of  the  city  of  New  York,  and  of 
all  the  banks  of  the  city  and  elsewhere  belonging  to  and 
connected  with  the  clearing  house,  and  of  the  defendant, 
that  any  check  drawn  UJKMI  any  one  of  the  said  banks,  and 
received  in  payment  or  for  collection,  of  any  other  of  the  said 
banks,  and  presented  by  the  bank  receiving  the  same  through 
the  clearing  house  to  the  bank  against  which  the  said  check 
was  drawn,  should  be  returned,  if  not  paid,  to  the  bank  pre- 
senting the  name  for  such  payment  on  the  same  day  on 
which  it  was  so  presented,  or  at  furthest  early  on  the 
morning  of  the  day  after  the  said  presentation  for  pay- 
ment and  In-fore  the  commencement  of  the  business  hours 
of  that  day,  or  in  delimit  thereof,  that  the  said  bank  thus 
failing  to  return  the  said  check  should  l>c  liable  to  the  holder 
thereof  to  pay  the  amount  of  tin-  chock,  whether  having 
funds  of  the  drawer  or  not.  The  count  then  states  that  the 
Ocean  Hank  and  .Bank  of  Commerce  were  both  mernlxjrs  of 
the  clearing  house,  and  had  assented  to  and  were  bound  by 
the  rule*  and  usages  set  forth  ;  that  the  Ocean  Hank  had  been 
appointed,  and  was  the  agent  of  the  defendant  to  redeem  its 
bills  and  pay  draft*  on  it  at  the  (tanking  house  of  the 
Ocean  Bank  in  New  York,  ami  to  receive  and  return  through 


JUNE  TERM,  1862. 


Overman  v.  Hoboken  City  Bank. 


the  clearing  house  drafts  and  checks  drawn  on  the  defend- 
ant, in  conformity  to  the  rule  of  the  clearing  house  just 
stated;  and  that  the  Ocean  Bank  had  for  a  long  time  so  done 
business  with  and  for  the  defendant,  and  that  the  defend- 
ant had  for  a  long  time  conformed  to  the  said  usage,  and 
agreed  to  be  bound  by  it;  that  the  plaintiff,  on  the  29th  of 
October,  1859,  deposited  this  check  for  collection  with  the 
Bank  of  Commerce,  which  bank,  on  the  31st,  the  30th  being 
Sunday,  duly  presented  the  check,  and  demanded  payment 
thereof  of  the  defendant,  through  its  agent,  the  Ocean  Bank, 
at  the  clearing  house  in  the  city  of  New  York,  according  to 
the  usage  stated  as  that  of  the  New  York  banks  and  of  the 
defendant,  and  that  the  defendant  retained  the  said  check, 
without  notice  of  nonpayment,  from  that  time  until  the 
second  day  of  November,  when  it  returned  the  same  to 
the  Bank  of  Commerce  with  notice  of  nonpayment;  that 
Andre  &  Brother  failed  on  the  first  of  November ;  that  by 
reason  of  the  neglect  to  return  the  check  in  time,  the  plain- 
tiff has  lost  the  money. 

It  will  be  observed  that  the  count  does  not  state  directly 
the  existence  or  mode  of  organization  of  the  association 
called  the  "clearing  house,"  nor  does  it  show  whether  it  is  an 
institution  authorized  by  special  legislation,  or  merely  a 
private  organization.  No  authority  is  shown  to  exist  in  the 
association,  in  any  way,  to  alter  or  modify  the  law  merchant 
in  regard  to  checks  or  commercial  paper. 

Such  an  association  can  have  no  power  to  make  usages  or 
rules  to  bind  those  who  are  not  parties  to  its  organization. 
Its  rules  and  usages,  if  not  in  conflict  with  law,  may  by  the 
implication  of  tacit  adoption  in  the  contracts  of  members, 
bind  them  in  the  same  way  that  a  general  usage  in  trade 
may  bind  those  who  deal  with  reference  to  it,  and  are  there- 
fore held  impliedly  to  adopt  it.  JRobson  v.  Bennett,  2  Taunt. 
388 ;  1  Parsons  on  Con.  229. 

But  those  wKo  are  not  bound  by  such  usages,  and  have 
not  contracted  with  reference  to  them,  have  no  right  to  avail 
themselves  of  them  to  create  an  obligation  against  those 


64  NEW  JERSEY  SUPREME  COURT. 


Overman  r.  Hoboken  City  Hank. 


who  are  jwrtics  to  their  adoption,  and    bound   by  them  inter 
test  only. 

It  is  manifest  that  the  usage  and  rules  set  up  in  (he  count 
were  adopted  by  the  associated  banks  for  their  own  conveni- 
ence, and  to  facilitate  the  transaction  of  business  and  avoid 
the  trouble  and  exj>ense  of  special  messengers  to  demand 
payment  of  checks,  bills,  and  notes,  and  not  for  the  purpose 
of  enlarging  the  rights  of  the  holders  of  commercial  paper 
who  are  not  mcniltcrs  of  the  association.  It  was  a  rule  de- 
signed to  operate  strictly  among  themselves  for  their  own 
convenience  in  the  despatch  of  business. 

Neither  the  plaintiff  nor  the  defendant  were  members  of 
the  association,  nor  does  the  declaration  state  that  the  plain- 
tiff, when  he  left  the  check  with  the  Bank  of  Commerce, 
knew  of  the  existence  of  the  usage,  or  in  any  way  modified 
his  contract  with  that  bank  for  the  collection  of  the  check  so 
as  to  embrace  the  benefit  of  the  usage  for  himself. 

If  the  Bank  of  Commerce,  in  pursuance  of  the  usage,  had 
a  right  to  hold  the  Ocean  Bank  for  a  failure  to  comply  with 
its  terms,  could  not  that  bank  relieve  the  Ocean  Bank  of 
such  liability  without  incurring  any  to  the  plaintiff?  It 
could  do  so,  for  the  manifest  reason  that  this  usage,  in  con- 
travention of  the  «-"iimi"!i  law,  formed  no  pare  of  the  con- 
tract between  the  plaintiff  and  the  Bank  of  Commerce.  It 
could  not,  unless  adopted  and  sanctioned  by  both  the  parties, 
be  binding  on  lx>th. 

That  the  Bank  of  ( 'ommerce,  in  the  collection  of  the  check, 
acted  an  agent  of  the  plaintiff  am  make  no  difference.  This 
fact  would  not  bring  the  ease  within  the  operation  of  the 
rule,  that  the  principal  is  entitled  to  the  benefit  of  the  con- 
tract of  the  agent,  while  transacting  the  business  of  the 
principal. 

This  is  undoubtedly  true  as  to  all  the  legal  rights  acquired 
by  the  agent  for  the  benefit  of  the  principal ;  but  we  have 
already  said  that  this  was  a  mere  lalwr-saving  usage,  de- 
Mgncd  for  the  exclusive  benefit  of  the  agent,  the  adoption  of 
which  could  not  affect  the  principal  without  his  assent. 


JUNE  TERM,  1862.  65 


Overman  v.  Hoboken  Citv  Bank. 


If  the  Bank  of  Commerce  had  omitted  its  duty  in  the  pre- 
sentation of  the  check  in  due  time,  so  that  by  the  failure  of 
.the  defendant  the  plaintiff  had  lost  his  money,  it  would  have 
been  responsible  to  the  plaintiff  for  that  neglect. 

That  is  not  the  allegation  here ;  but  the  insistment  of  the 
plaintiff  is,  that  his  agent,  the  Bank  of  Commerce,  and  the 
defendant's  agent,  the  Ocean  Bank,  had  an  arrangement,  or 
were  parties  to  one,  by  which  the  defendant  was  to  be  re- 
sponsible for  the  amount  of  the  check  if  the  Ocean  Bank  did 
not  return  it  to  the  Bank  of  Commerce  on  the  same  day  it 
was  presented  to  the  Ocean  Bank,  or  the  next  morning  before 
•ten  o'clock. 

The  usage  is  defectively  set  forth  in  the  count,  if  the 
meaning  of  the  pleader  was  to  state  that  this  check  was  to  be 
left,  by  the  presenting  bank,  with  the  bank  on  which  it  was 
-drawn,  or  its  agent.  It  is  supposed  that  was  the  intention  of 
the  pleader. 

It  would  be  impossible  for  a  bank  upon  which  a  check  was 
•drawn,  to  return  it  by  a  given  time,  if  it  were  not  left  in  the 
possession  of  that  bank ;  if  merely  presented  by  the  collec- 
tion bank  without  parting  with  the  possession,  no  return 
would  be  possible ;  nothing  could  happen  in  case  of  nonpay- 
ment but  a  mere  refusal  to  pay. 

If,  therefore,  that  was  the  usage,  and  it  was  so  set  forth  in 
>the  count,  it  is  defective  in  not  setting  forth  that  the  check 
•was  delivered  by  the  Bank  of  Commerce  to  the  defendant,  or 
its  agent,  the  Ocean  Bank. 

The  declaration  is  defective  in  not  setting  forth  the  usage 
intelligibly.  As  it  is  set  forth,  it  is  absurd  ;  and  if  it  were 
•set  forth  as  I  have  supposed  it  was  intended  to  be,  the  usage 
was  not  complied  with. 

Customs  and  usages  in  derogation  of  the  common  law 
must  be  strictly  pleaded  ;  and  when  well  pleaded,  the  count 
must  show  a  case  clearly  within  the  usage.  If  a  case  can  be 
conceived  calHng  for  the  application  of  the  rule,  it  is  the 
present,  where  it  is  attempted  to  make  the  defendant  liable, 


66  NEW  JERSEY  SUPREME  COURT. 


Overman  v.  Hoboken  City  Bank. 


by  mere  force  of  usage,  to  pay  a  check  of  a  drawer  without 
any  funds  of  his  in  its  hands. 

The  usage  pleaded  is,  that  when  a  check  is  presented  at 
the  clearing  house  to  a  bank  against  which  the  said  check 
was  drawn,  then  if  not  returned  within  the  same  day,  or  the 
next,  before  ten  o'clock,  the  bank  on  which  it  was  drawn 
shall  be  liable. 

It  does  not  cover  the  case  of  a  presentation  to  an  agent. 
The  presentation  must  be  to  the  bank  on  which  it  was  drawn. 
This  is  an  essential  difference.  For  such  a  purpose,  the- 
agent  does  not  represent-  the  principal.  The  usage,  if  con- 
templating a  presentation  to  the  principal,  may  be  reasonable^ 
and  very  unreasonable  if  extending  to  the  agent.  The  plain- 
tiff has  failed  to  bring  his  case  within  the  usage. 

This  count  cannot  be  supported  upon  the  ground  that  the- 
facts  alleged  .show  an  acceptance  independent  of  the  usage.. 
The  count  does  not  show  that  the  check  ever  was  in  possession 
of  the  defendant :  if  not,  there  could  be  no  failure  to  return 
it  so  as  to  make  the  defendant  liable.  Whether  a  failure  to- 
return  a  check  (when  sent  to  the  bank  on  which  it  is  drawn) 
in  a  reasonable  time  amounts  to  an  acceptance,  must  always 
depend  on  the  particular  circumstances  of  each  case.  Jeune 
v.  Ward,  2  Starkie  326,  and  cases  there  cited. 

A  failure  to  return  is  not  of  necessity  an  acceptance :  they 
are  not  convertible  terms.  It  may  or  may  not  l>e  :  there  may 
be  a  sufficient  excuse  for  the  failure.  If  the  plaintiff  relied  on 
an  acceptance,  he  should  have  stated  it,  as  he  ha«  done  in  the 
first  count. 

The  third  count  alleges  the  drawing  of  the  check  in  New 
York,  as  in  the  second,  by  the  same  persons,  and  its  delivery 
to  the  plaintiff  and  the  existence  of  an  usage  of  the  defend- 
ant to  receive,  through  the  Ocean  Hank  of  New  York,  de- 
mand of  payment  of  checks  drawn  upon  defendant  in  New 
York ;  tlint  the  Ocean  Bank  was  it*  agent  for  that  purpose, 
and  that  it  was  the  usage  and  agreement  between  that  bank 
and  defendant  that  all  checks  drawn  on  it  in  New  York,  or 
used  there  and  presented  to  the  defendant  through  the 


JUNE  TERM,  1862.  67 

Overman  v.  Hoboken  City  Bank. 

Ocean  Bank,  which  should  not  be  returned  to  the  holders 
thereof  on  the  same  day,  or  the  day  after  before  ten  o'clock 
in  the  forenoon,  should  be  paid  by  the  defendant  (without 
saying  to  whom) ;  that  the  plaintiff,  relying  on  the  said  usage 
and  agreement  between  defendant  and  the  Ocean  Bank,  pre- 
sented this  check,  on  the  31st  October,  1859,  to  the  Ocean 
Bank  for  payment;  that  that  bank,  on  the  same  day,  pre- 
sented it  to  the  defendant  for  payment ;  that  defendant  re- 
ceived the  check  from  the  Ocean  Bank  on  that  day,  and  that 
the  defendant  did  not  return  the  same  to  the  plaintiif,  the 
holders  thereof  at  that  time,  either  on  that  day  or  the  next, 
before  ten  o'clock  in  the  forenoon,  and  that  by  means  thereof 
and  by  force  of  the  agreement  between  the  Ocean  Bank  and 
defendant,  and  by  force  of  the  statutes  of  New  York,  the  de- 
fendant became  liable  to  pay  the  amount  of  the  check  to  the 
plaintiff. 

The  plaintiff's  action  on  this  count  is  not  for  a  breach  of 
a  promise  to  accept  the  check,  and  pay  it — not  for  an  ac- 
ceptance,— but  is  founded  entirely  on  an  usage  and  agreement 
between  its  agent,  the  Ocean  Bank,  and  the  defendant,  to  pay 
all  checks  drawn  or  used  in  New  York  on  the  defendant, 
and  presented  to  it  through  the  Ocean  Bank,  unless  returned 
the  same  day  or  the  next  before  ten  o'clock  in  the  forenoon. 
The  count  does  not  allege  that  defendant  had  any  funds  of  the 
drawer,  or  that  the  plaintiff  sustained  any  special  damage  by 
the  failure  to  return  the  check. 

The  plaintiff  avers  that  he  was  the  holder  of  the  check  at 
the  time  of  presentation,  and  that  he  presented  it  to  the  Ocean 
Bank,  who  at  the  time  was  the  agent  of  the  defendant,  to  re- 
ceive demand  of  payment. 

Under  this  state  of  facts,  the  plaintiff  shows  no  interest  in 
the  contract  on  which  he  counts.  He  shows  himself  as  a 
stranger  to  it  in  every  sense.  The  Ocean  Bank  is  not  his 
agent,  but  that  of  the  defendant;  he  can  claim  no  benefit  of 
a  contract  between  the  defendant  and  its  agent.  As  a  con- 
tract, it  is  nudum  pactum ;  no  consideration  is  shown  as  pass- 
ing either  from  the  Ocean  Bank  or  the  plaintiff. 


68  NEW  JERSEY  SUPREME  COURT. 


Overman  v.  Ilubuken  City  Bank. 


U|K»n  what  possible  grounds  can  the  plaintiff  claim  the 
right  to  enforce  a  promise,  for  which  there  was  no  considera- 
tion, to  the  terms  and  parties  of  which  he  is  a  stranger?  As 
was  remarked  in  regard  to  the  last  count,  the  facts  pleaded 
are  not  equivalent  to  an  acceptance. 

The  fourth  count  states  the  making  and  delivery  of  the 
chock ;  the  agency  of  the  Ocean  Bank  for  the  defendant; 
the  established  usage  of  the  defendant  to  pay  checks  on 
the  defendant  presented  at  the  Ocean  Bank,  if  not  re- 
turned as  alx>ve  stated ;  that  the  plaintiff  was  cognizant 
of  the  usage;  that  he  presented  the  check  at  the  Ocean 
Bank,  and  demanded  payment ;  that  defendant,  through 
that  bank  as  its  agent,  received  the  check,  took  possession 
of  it,  and  promised  the  plaintiff  to  pay  it  if  not  returned  as 
above  stated  ;  that  it  was  not  returned,  and  has  not  been  paid  ; 
that  Andre  &  Brother,  the  drawers,  became  insolvent  on  the 
first  day  of  November,  after  ten  o'clock,  and  before  the  check 
was  returned. 

The  attempt  in  this  count  is  to  charge  the  defendant  with 
the  check  on  the  footing  of  an  express  contract  between  the 
plaintiff  and  defendant  to  pay  the  check,  if  not  returned 
within  the  given  time. 

If  this  is  to  l>e  treated  either  as  a  promise  to  accept  or  a 
promise  to  pay  it  cannot  avail  the  plaintiff.  No  considera- 
tion to  mip|K>rt  the  promise  is  stated  or  ap|>ears.  It  is  not 
the  case  of  a  cheek  taken  on  the  faith  of  such  a  promise.  The 
holder  gave  nothing  for  the  promise — relinquished  no  advan- 
tage— nor  did  he  take  the  check  because  the  drawers  had  made 
any  absolute  or  conditional  promise  to  pay  it.  The  drawees 
never  did  accept  it,  nor  did  their  agents. 

All  the  cases  which  hold  that  a  promise  to  accept  a  bill 
:i  iii' MI  in-  to  an  acceptance,  put  the  doctrine  on  the  ground  that 
the  holder  has  taken  the  bill  on  the  faith  of  the  promise;  that 
until  Hiich  negotiations  there  is  no  acceptance,  nothing  but  a 
contract  between  the  drawer  and  drawee  collateral  to  the 
bill,  which,  like  all  other  contracts,  must  have  a  consid- 
eration to  -n pp. irt  it  J/'Mrm  v.  JIunt,  Doug.  297 ;  Pieraon 


JUNE  TERM,  1862.  69 

Hand  long  v.  Barnes. 

v.  Dunlop,  Cowp.  571;  Coolidge  v.  Payson,  2  Wheat.  66; 
Johnson  v.  Callings,  1  East  98 ;  Clark  v.  Cook,  4  East  57 ; 
Sehimmelpennich  v.  Bayard,  1  Pe£.  284 ;  Boyce  v.  Edwards,  4 
Pel  111 ;  Puss<?#  v.  Wiggins,  2  Store's  G  C.  Pep.  237  ;  J.dams 
v.  Jones,  12  Pe£.  207  ;  Carrigus  v.  Morrison,  2  Jtfefc.  381. 

I  can  find  nothing  in  this  case  to  distinguish  it  from  that 
•of  a  contract  without  consideration,  and  therefore  nudum 
poctum. 

The  three  counts  demurred  to  are  all  defective. 

Judgment  for  demurrant. 


GEORGE  HANDLONG  AND  WIFE  v.  ELISHA  BARNES  ET  AL. 

1.  In  a  suit  in  which  husband  and  wife  are  joined  are  parties,  neither  is  a 
competent  witness  for  or  against  the  other. 

2.  Under  the  "  act  concerning  witnesses "   (Nix.  Dig.  928),  neither  hus- 
band nor  wife,  in  any  suit  or  proceeding  in  which  they  are  joined  as 
parties,  is  a  competent  witness  for  or  against  the  other. 

3.  Under  the  same  act,  neither  party  can  be  sworn  when  the  other  party 
is  prohibited  by  any  legal  disability. 


In  ejectment.  Case  certified  from  the  Warren  Circuit  Court. 
Argued  at  February  term,  1862. 
For  the  plaintiff,  J.  M.  Robeson  and  J.  G.  Shipmcm. 
For  the  defendant,  D.  A.  Depue. 

CHIEF  JUSTICE.  Handlong  and  wife  sued  Barnes,  in  eject- 
ment, for  lands  which  they  alleged  were  the  property  of  Mrs. 
Handlong,  as  heir-at-law  of  her  father.  At  the  trial,  Barnes 
was  offered  as  a  witness  and  rejected.  The  point  to  be  de- 
cided is,  was  he  a  competent  witness? 

The  supplement  to  an  act  concerning  witnesses  (Nix.  Dig- 
928)*  declares  "  that  no  person  shall  be  disqualified  as  a  wit- 
ness, in  any  suit  or  proceeding  at  law  or  in  equity,  by  reason 
of  his  or  her  interest  in  the  event  of  the  same,  as  a  party  or 

*Eev.,  p.  378  |  3. 


70  NEW  JERSEY  SUPREME  COURT. 

Handlong  v.  Barnes. 

otherwise,  &c.  ;  provided,  that  no  female  shall  be  admitted  as 
a  witness  for  or  against  her  husband,  except  when  the  suit 
or  proceeding  is  between  her  and  her  husband,  or  shall  any 
party  be  sworn  in  any  case  when  the  opposite  party  is  pro- 
hibited by  any  legal  disability  from  being  sworn  as  a  witness." 

The  ground  of  the  rejection  was,  that  neither  Handlong 
nor  his  wife  could  be  sworn  because  disabled  to  testify  for  or 
against  each  other,  and  that  therefore  Barnes  was  incompe- 
tent. 

The  language  of  the  act  is  peculiar.  It  does  not  declare 
the  parties,  as  such,  corn{)etent  witnesses,  but  the  interest 
arising  out  of  this  relation  to  the  case  shall  not  render  them 
incompetent.  If  they  were  incompetent  for  other  reasons 
than  being  parties,  that  iucompeteucy  is  not  taken  away. 
"Without  entering  into  an  examination  of  the  authorities  and 
text  books  upon  the  point,  I  am  satisfied,  by  the  great  weight 
of  authority  as  well  as  by  the  reason  of  the  rule,  that  by  the 
common  law,  neither  a  husband  or  wife  could  in  civil  cases 
be  witnesses  for  or  against  each  other.  The  rule  was  in- 
flexible, and  rested  partly  upon  the  ground  of  their  legal 
identity  and  joint  interest,  and  partly  upon  considerations  of 
policy  in  regard  to  the  marriage  relation,  to  preserve  do- 
mestic |>eace  and  harmony,  and  the  unreserved  confidence 
which  the  marriage  relation  implies  and  requires.  Whether 
the  husband  or  wife  were  or  were  not  parties  to  this  suit  did 
not  matter;  neither  could  give  evidence  to  supj>ort  or  de- 
stroy a  right  claimed  by  the  other.  This  rule  was  the  same 
whether  they  were  sworn  for  or  against  each  other.  Jackson 
v.  MiUer,  \  Duichtr  93 ;  Ahem  v.  Smalltr,  2  Sand.  8.  C. 
Rep.  340;  ILisbrouck  v.  Vandervoort  et  a/.,  4  Sand.  S.  C. 
Rep.  599 ;  Davis  v.  Dimcootly,  4  T.  Rep.  678 ;  Marker  v. 
Dixie,  Cos.  Temp.  Hardwicke  204;  Stapleton  v.  Crofts,  18 
Adolph.  <t  EUis  368,  |M*r  I^ord  Campbell,  Ch.  Justice;  JSent- 
ley  v.  Cooke,  3  Doug.  422  ;  Utaanck  v.  Rogers,  8  Paige  229, 
241  ;  Wiwlhnm,  v.  Chctwynd,  1  Hurr.  424  ;  The  People,  ex 
rel.  Barry,  v.  Merccin,  8  Paige  47,  56  ;  Snyder  v.  Snyder,  6 
Binney  483,  488  ;  Battkcws  v.  Galindo,  3  Car.  &  Payne  238 ; 


JUNE  TERM,  1862.  71 

Handlong  v.  Barnes. 

Hasbrouck  v.  Vandervoort,  5  Seld.  157;  Tiley  v.  Cowling,  1 
Ld.  Raym.  744 ;  Stein  v.  Bowman,  13  Pe£.  221 ;  1  Green- 
leafs  Ev.,  §  341,  344 ;  1  Phillips'  Ev.  83 ;  Holdfast  v.  J5ow- 
£m<7,  2  Strange  1253;  Hawkesw&rth  v.  Showier  and  Boyee,  12 
Jlfees.  <fc  TFe/s.  45;  Alcock  v.  Alcock,  12  JEru?.  .Law  and  £^. 
354 ;  0'  Connor  v.  Majoribanks,  4  Mann.  &  Gr.  435 ;  JBwr- 
re#  v.  .Bu#,  3  /Sand.  (7A.  Rep.  1 5 ;  jRese  v.  Cliviger,  2  Term 
J2ep.  263 ;  Gilbert's  Law  of  Ev.  252. 

These  cases  show  most  conclusively  that  the  rule  did  not 
rest  upon  the  ground  of  pecuniary  interest,  but  upon  the 
broad  ground  of  the  importance  of  preserving  the  sanctity 
of  the  marriage  relation,  by  removing  this  ground  of  differ- 
ence and  preserving  unimpaired  that  entire  unity  which  is 
the  essential  feature  of  marriage  by  the  common  law.  As 
Lord  Coke  has  quaintly  put  it,  a  wife  cannot  be  produced 
either  against  or  for  her  husband  "  quia  sunt  duce  animce  in 
came  una." 

The  proviso  does  not  alter  the  construction  of  the  act.  It 
was  inserted  probably  for  abundant  caution,  but  it  confirms 
the  view  just  taken.  It  indicates  the  legislative  will,  that 
the  act  should  not  alter  the  position  of  a  wife  so  as  to  qualify 
her  for  or  against  her  husband. 

Our  statute  has  removed  but  one  ground  of  incompetency 
of  parties,  that  is  interest.  Handlong  could  not  have  been 
sworn  for  his  wife,  if  she  is  to  be  regarded  as  the  party  within 
the  act,  nor  could  she  have  been  sworn  for  him,  if  he  is  to  be 
considered  the  party. 

Lord  Damans'  act,  to  be  found  in  Powell  on  Ev.  393,  re- 
moved the  disqualification  of  interest,  but  provided  that  the 
party  to  the  suit,  &c.,  or  the  husband  or  wife  of  the  party, 
should  not  be  sworn  by  virtue  of  the  act.  The  act,  14  and 
15  Viet.,  Gap.  99,  Powell  on  Ev.  397,  repealed  this  proviso, 
and,  by  express  provision,  admitted  the  parties  as  witnesses 
for  or  against  each  other.  So  that,  under  the  two  acts,  the 
objection  as  to-  interest  was  removed,  and  the  parties  ex- 
pressly made  competent.  Under  these  acts,  in  Stapleton  v. 
Crofts,  18  Q.  B.,  Adol  &  Ell.  367,  the  Queen's  Bench  de- 


72  NEW  JERSEY  SUPREME  COURT. 

Handlong  v.  Barnes. 

cided  that,  in  a  suit  brought  against  her  husband,  the  wife 
was  not  a  competent  witness  for  him. 

In  Barbat  v.  Allen,  7  techequer  Rep.  609,  612,  the  Court 
of  Exchequer  decided  that  the  defendant's  wife  was  not  a 
competent  witness  for  him,  upon  the  ground  that  at  common 
law  she  was  not  comjK'tent,  and  that  the  removal  of  the  ob- 
jections of  interest  did  not  render  her  competent.  These 
oases,  decided  as  they  were  by  Lord  Campbell  and  Baron 
Parke,  respectively,  satisfy  my  mind  that  the  view  I  have 
taken  is  correct.  Nor  is  my  conclusion  at  all  shaken  by  the 
<ase  of  Merriam  v.  The  Hartford  and  New  Haven  Railroad 
Company,  29  Conn.  354,  cited  and  much  relied  UJMMI  by  the 
defendant's  counsel. 

Two  things  are  plain  upon  the  construction  of  our  act. 

1.  That  the  legislature  did  not  mean  to  interfere  with  the 
competency  of  husbands  and  wives  as  witnesses  for  or  against 
«ach  other. 

2.  That  neither  party  was    to  be  sworn  when    the  other 
could  not  be,  or   had  died ;    so  that  the   act  would  operate 
fairly,  giving  neither  one  advantage  over  the  other. 

The  Circuit  Court  should  be  advised  that  Barnes  was  not  a 
competent  witness. 

ELMER,  J.  In  an  action  of  ejectment  by  husband  and 
wife  for  land  claimed  by  the  wife,  one  of  the  defendants  was 
offered  as  a  witness;  and  being  objected  to  by  the  plain- 
tiff'M,  and  rejected  by  the  court  as  incompetent,  the  single 
question  referred  to  us  for  our  opinion  is  whether  the  witness 
was  rightly  rejected.  This  depends,  as  both  sides  agree, 
njn.ii  the  question,  whether  the  wife  of  one  of  the  plaintiffs, 
herself  the  other  plaintiff,  and  suing  to  recover  her  own  prop- 
erty, could  be  a  witness. 

Without  deeming  it  necessary  to  examine  the  numerous 
4Mes,  more  or  less  bearing  on  this  question,  which  were  re- 
ferred to  by  the  counsel  who  so  ably  argued  this  cause,  I 
think  the  proviso  of  our  act  concerning  witnesses,  approved 
in  1859,  3  Nix.  Dig.  928,*  is  too  plain  to  leave  any  serious 

•Rt*.,  p.  878, 1  3. 


JUNE  TERM,  1862.  73 


Hoboken  v.  Harrison. 


doubt  what  ought  to  be  our  decision.  Independently  of  this 
act,  neither  party  could  be  a  witness.  The  proviso,  which 
is  not  found  in  other  acts  for  the  same  general  purpose,  is, 
that  "  no  female  shall  be  a  witness  for  or  against  her  hus- 
band, except  when  the  suit  or  proceeding  is  between  her  and 
her  husband."  If  the  wife  was  admitted  as  a  witness  for 
plaintiffs,  I  do  not  see  how  it  can  be  denied  that  she  would 
be  a  witness  for  her  husband,  although  she  would  be  a  witness 
mainly  for  herself.  He  is  a  necessary  party  to  the  suit,  and 
the  judgment  will  be  necessarily  either  for  or  against  him, 
as  well  as  for  or  against  her.  The  principle  adopted  by  this 
court  in  the  case  of  Myers  v.  Hollingsworth,  2  Dutcher  187,  and 
by  the  English  and  American  courts  in  most  of  the  cases 
that  have  arisen  under  the  new  statutes  regulating  evidence, 
that  the  ancient  rules  are  to  be  adhered  to  in  all  cases  where 
it  does  not  clearly  appear  that  the  legislature  meant  to  alter 
them,  is  in  my  opinion  the  only  safe  one,  and  ought  to  be 
carefully  adhered  to.  I  am  therefore  of  opinion  that  the  wit- 
ness was  rightly  rejected,  and  that  the  Circuit  Court  should 
be  advised  to  refuse  a  new  trial. 

CITED  in  Yetman  v.  Day,  4  Vroom  32 ;  Metier  v.  Metiers  Adm'r,  4  C.  E. 
Green  460. 


THE  MAYOE,  ETC.,  OF  HOBOKEN  v.  HARRISON,  HARP,  AND 

WALKER. 

1.  The  powers  of  a  municipal  corporation  are  derived  from  its  charter. 
It  cannot,  without  express  authority  from  the  charter,  create  an  office, 
define  its  duties,  appoint   an    incumbent,  and  clothe    him  with  the 
powers  of  a  municipal  officer. 

2.  Where  an  officer  of  a  municipal  corporation  gives  his  official  bond 
with  sureties,  which  bond  recites  that  he  has  been  appointed  "  collector 
of  assessments   for  street  improvements,"  with   condition   that   "  he 
should  well  and  truly  pay  to  the  treasurer  of  said  city  all  moneys 
which  he  might  collect  or  receive  as  such  collector  as  aforesaid,"  &c., 
the  sureties  are.  estopped  from  denying  that  such  officer  was  de  facto  a 
collector  of  assessments  for  street  improvements,  and  their  liability  to 
pay  over  what  he  has  collected  is  co-extensive  with  his  liability. 

3.  The  fact  that  bonds  are  not  prescribed  by  law  does  not  necessarily  in- 


74  NEW  JERSEY  SUPREME  COURT. 


Hoboken  v.  Harrison. 

validate  them,  although  given  by  a  public  officer  as  security  for  the 
discharge  of  his  duties,  if  they  are  not  unlawfully  exacted  of  him  :  if 
voluntarily  given,  they  are  binding  uj>on  the  parties  to  them. 
By  the  charter  of  the  city  of  Hoboken,  "  street  improvements"  do  not 
include  the  building  of  *ewers,  and  an  officer  may  well  be  a  collector 
of  assessments  for  "street  improvements,"  and  not  of  sewer  assess- 
ments. Sureties  on  such  bond  ought  not  to  be  held  upon  their  admis- 
sions beyond  its  fair  limits.  Estoppels  by  deed  are  to  be  strictly  con- 
Btrued. 


In  debt.     On  demurrer  to  declaration. 

For  the  plaintiff,  F.  B.  Ogden. 

For  the  defendants,  J.  H.  Lyons  and  I.  W.  Scudder. 

The  facts  are  set  forth  in  the  opinion  of  the  court. 

CHIEF  JUSTICE.  This  is  an  action  brought  on  what,  upon 
its  face,  purports  to  be  the  official  bond  of  Harrison,  as  col- 
lector of  assessments  for  street  improvements.  The  other 
defendants  are  sureties.  The  condition  of  the  bond  recites 
that  Harrison  had  been  duly  appointed  by  the  plaintiff  col- 
lector of  assessments  for  street  improvements,  and  stipulates 
for  the  faithful  performance  of  all  the  duties  of  his  said 
office  of  collector  of  assessments,  and  that  he  should  well 
and  truly  jwy  to  the  treasurer  of  the  city  all  moneys  which 
he  might  collect  or  receive  as  such  collector,  at  the  time  and 
in  the  manner  prescribed  by  any  ordinance,  or  which  should 
or  might  be  required  by  any  resolution  of  the  said  council, 
approved  by  the  mayor,  in  the  same  manner  as  ordinances 
are  required  to  be  approval  by  him,  and  should  also  do  and 
|>erforiii  all  other  matters  and  things  ap|>crtaining  to  his  said 
office  of  collector  of  asM'ssments  according  to  law.  The  bond 
bears  date  on  the  14th  July,  1858. 

The  plaintiff  has  assigned  several  breaches  of  the  condi- 
tion. 

1st.  A  breach  in  the  negative  of  the  words  of  the  condi- 
tion. 

2*1.  That  an  ordinance  of  the  30th  June,  1858,  charges  the 


JUNE  TERM,  1862.  75 


Hoboken  v.  Harrison. 


collector  of  assessments  with  the  duty  of  collecting  all  assess- 
ments which  are  confirmed  according  to  law  for  street  improve- 
ments or  for  any  sewer  in  said  city;  that,  on  the  16th  Novem- 
ber, 1859,  a  certain  assessment  for  a  sewer  through  Newark 
and  Washington  streets  was  confirmed,  amounting  to  $13,- 
117.41 ;  that  it  was  recorded  by  the  city  clerk  in  an  assessment 
book  which  was  delivered  by  the  city  clerk  to  him;  that  he 
collected,  as  such  collector,  the  whole  money  upon  it,  and  did 
not  pay  over  to  the  city  treasurer  according  to  the  conditions. 

The  third  breacli  states  similar  facts  in  regard  to  another 
assessment  of  $20,943,  collected  by  him  as  such  collector,  aud 
nonpayment. 

The  fourth  breach  states  the  confirmation  of  an  assessment 
for  the  improvement  of  certain  streets,  amounting  to  $11,- 
897.27,  and  the  recording  of  it,  and  putting  the  book  into  his 
hands  for  collection ;  that  he  collected  the  money,  as  such  col- 
lector of  assessments,  and  did  not  pay  it  over. 

To  this  declaration  the  defendants  have  demurred. 

The  principal  ground  relied  upon  by  the  defendants  is, 
that  the  ordinance  creating  the  office  of  collector  of  assess- 
ments is  extra  vires,  no  such  power  being  conferred  by  the 
charter,  which  did  not  create  the  office. 

The  powers  of  a  municipal  corporation  are  derived  from 
its  charter.  It  cannot,  without  express  authority  from  the 
charter,  create  an  office,  define  its  duties,  and  appoint  an 
incumbent,  and  clothe  him  with  the  powers  of  a  municipal 
officer. 

A  collector  of  assessments  for  street  improvements  of  the 
city  of  Hoboken  is  not  such  a  subordinate  officer  as  is  con- 
templated in  the  act  concerning  corporations.  It  is  manifest, 
from  the  whole  charter,  that  it  was  the  legislative  intention 
itself,  to  create  all  the  offices  and  designate  all  the  officers 
to  be  elected  or  chosen  by  the  city  or  the  city  authorities, 
and  to  regulate  the  mode  of  appointment.  The  third  section 
of  the  act  declares,  that  hereafter,  and  until  otherwise  pro- 
vided by  law,  there  shall  be  elected  in  and  for  the  said  city 
a  mayor,  a  treasurer,  a  clerk  of  the  city,  a  collector,  a  col- 


76  NEW  JERSEY  SUPREME  COURT. 


Hobnkcn  v.  Harrison. 


lector  of  arrears  of  taxes,  and  overseer  of  the  poor,  a  superin- 
tendent of  common  schools,  a  street  commissioner,  a  pound- 
keeper,  a  chief  engineer  of  the  fire  department,  and  one  assist- 
ant engineer,  all  to  be  elected  for  one  year  and  by  the  people, 
except  the  chief  engineer  and  assistants  of  the  fire  department, 
who  are  to  be  elected  by  the  department. 

The  powers  of  the  council  are  defined,  not  only  in  regard 
to  their  general  powers  of  legislation,  but  the  officers  which 
they  may  appoint  are  ascertained,  a  keeper  of  the  city  prison, 
a  weigh  master,  an  insj>ector  of  lumber,  firewood,  coal,  and 
other  fuel. 

It  would  be  in  gross  contravention  of  a  charter,  which  pro- 
vides for  a  treasurer,  a  collector  of  taxes,  and  a  collector  of 
arrears  of  taxes,  to  be  elected  by  the  people  for  one  year,  to 
hold  that  the  common  council  might  appoint,  as  they  did  in 
this  case,  a  collector  of  assessments  to  hold  for  an  indefinite 
|>eriod.  Their  charter  l>emg  silent  on  the  subject,  it  was  in 
the  power  of  the  common  council,  by  ordinance,  to  direct  the 
collection  of  assessments  for  street  improvements  to  be  made 
by  the  collector  of  taxes,  or  collector  of  arrears  of  taxes,  in 
any  manner  not  inconsistent  with  the  charter.  Indeed,  I  am 
not  able  to  see  why  these  officers  were  not  ex  officio  clothed 
with  jxjwer  to  collect  the  assessments.  The  charter  does  not, 
in  express  terms,  give  even  the  collector  of  taxes  power  to 
collect  them  ;  he  h:is  it,  however,  by  fair  and  necessary  impli- 
cation from  the  nature  of  his  office. 

If  the  ordinance  passed  June  30th,  1858,  is  to  be  regarded 
as  creating  a  new  office,  which  without  doubt  was  its  design, 
it  was  beyond  the  power  of  the  common  council,  and  for  that 
purjHHe  void.  If,  however,  it  can  be  construed  as  regulating 
the  proceedings  of  the  collectors  of  taxes  in  the  collection  of 
assessment*  for  street  improvements  and  sewers,  it  may  possi- 
bly be  sustained;  and  if  it  were  necessary  to  do  so,  in  order 
to  do  justice  in  this  case,  I  should  be  inclined  to  adopt  that 
view.  For  many  pur|Hwes  an  assessment  is  synonymous  with 
tax,  i-.-irii'  ularly  so  when  the  tax  in,  as  declared  by  this  char- 


JUNE  TERM,  1862.  77 

Hoboken  v.  Harrison. 

ter  when  assessed  upon  lands,  whether  for  general  or  particu- 
lar purposes,  a  lien  upon  the  land. 

This  case  may  be  put  upon  grounds  clear  of  tne  many  diffi- 
culties that  lie  in  the  way  of  that  view. 

The  declaration  cnarges  the  collection  by  Harrison  of 
certain  sums,  as  collector  of  assessments  for  street  improve- 
ments, and  certain  other  sums  for  sewers,  and  his  refusal 
and  neglect  to  pay  over  these  sums  to  the  city.  It  shows 
him  in  possession  of  large  sums  of  money  paid  by  the  tax- 
payers into  his  hands,  as  a  lawful  collecting  officer  of  the 
city ;  treaied  as  such  both  by  the  mayor  and  common  coun- 
cil, the  taxpayers,  and  the  sureties  upon  this  bond.  The 
plainest  principles  of  justice  require  that,  in  a  suit  against 
him  by  the  corporation,  he  should  not  be  permitted  to  avoid 
the  payment  of  the  money  which  he  has  received  under  the 
color  of  his  appointment  for  the  use  of  the  city ;  he  would  be 
stopped  from  setting  up  the  invalidity  of  his  appointment,  and 
would  be  held  to  the  responsibilities  of  an  officer  de  facto. 

By  the  condition  of  this  bond,  it  is  recited,  that  whereas  the 
said  William  R.  Harrison  had  been  duly  appointed  by  the 
mayor  and  common  council  of  the  city  of  Hoboken  as  collectw 
of  assessments  for  street  improvements,  that  if  he  should  well 
and  truly  pay  to  the  treasurer  of  said  city  all  moneys  which 
he  might  collect  or  receive  as  such  collector  as  aforesaid,  &c. 

By  this  condition,  the  sureties  have  admitted  that  his  elec- 
tion was  by  the  mayor  and  common  council,  and  agreed  to  be 
sureties  for  the  payment  of  all  moneys  which  by  virtue  of  the 
appointment,  thus  made,  he  might  receive.  They  are  estopped 
from  denying  that  Harrison  was  de  facto  a  collector  of  assess- 
ments for  street  improvements.  Their  liability  to  pay  over 
what  he  has  collected  is  co-extensive  with  his. 

In  a  suit  for  moneys  collected  by  him  as  such,  neither  the 
officer  de  facto  nor  his  sureties  may  set  up  the  invalidity  of 
his  appointment  in  bar  of  the  action. 

The  action  is-  not  to  enforce  upon  him  the  execution  of  the 
duties  of  his  office,  or  to  recover  damages  for  his  failure  to 

VOL.  i.  E 


78  NEW  JERSEY  SUPREME  COURT. 

Hoboken  v.  Harrison. 

perform  them.  In  such  a  case  both  he  and  his  sureties 
might  answer  and  say,  perhaps  successfully,  there  was  no 
such  office,  and  I  was  without  legal  power ;  but  here  the  suit 
is  founded  upon  an  actual  complete  execution  of  the  duties 
of  the  office  he  claims  to  fill:  he  isfunctus  officvo  as  collector 
of  taxes.  The  money  he  has  is  the  money  of  the  city,  which 
he  has  no  right  to  retain,  and  which  his  sureties,  on  the 
whole  case  just  as  it  is,  have  stipulated  that  lie  shall  pay 
over  to  the  city  treasurer.  Seiple  v.  Borough  of  Elizabeth,  3 
Dutcher  410. 

Nor  does  this  view  of  the  case  conflict  with  any  settled  rule 
of  law. 

The  lx>nd  was  not  exacted  from  the  defendant  in  a  case 
where  no  bond  could  be  taken,  as  a  condition  of  his  enjoying 
his  office,  or  where  the  statute  prescribed  a  bond  with 
another  condition.  It  was  not  a  bond  for  ease  and  favor, 
taken  by  an  officer  in  violation  of  his  duty.  The  bond  was 
given  in  good  faith  by  Harrison,  supposing  he  was  the  law- 
ful incumbent  of  an  existing  office  to  which  he  had  been 
appointed  i 

To  |.«-i  mit  the  enforcement  of  the  bond,  so  far  as  it  stands 
as  a  security  for  the  public  money  in  the  hands  of  Harrison, 
does  not  violate  any  rule  founded  on  public  policy  or  legis- 
lation. 

It  would  seem  to  be  eminently  impolitic  to  permit  the 
parties  to  such  a  lx>nd  to  e*caj>e  its  obligations  by  contradict- 
ing the  recitals  of  the  Komi,  and  thus  retain  from  the  public 
authorities  the  taxes  received  by  an  officer  defacio. 

The  fact  that  bonds  are  not  prescribed  by  law,  does  not 
necessarily  invalidate  them,  although  given  by  a  public 
officer  as  a  security  for  the  discharge  of  his  duties,  if  they 
are  not  unlawfully  exacted  of  him;  if  voluntarily  given,  they 
are  binding  uj>on  the  parties  to  them.  Woolwich,  v.  Forrest, 
Pcntiington  115;  Unital  State*  v.  Tingey,  5  Peters  129  ;  Tyler 
v.  Hand,  7  Howard  681  ;  United  States  v.  Bradley  10  Peters 
361. 

These  <M-«>  directly  decide  that  such  bonds  are  valid.     If, 


JUNE  TERM,  1862.  79 


Hoboken  v.  Harrison. 


then,  he  was  a  collector  of  assessments  de  facto,  and  he  and  his 
sureties  in  this  action  are  estopped  from  denying  it,  a  bond 
voluntarily  given  by  him  as  security  for  the  discharge  of  his 
duties  may  be  enforced,  so  far  as  his  duties  have  been  exe- 
cuted. 

The  remaining  question  is,  are  the  sureties  liable  for  the 
moneys  collected  by  him  assessed  for  sewers,  as  stated  in 
the  third  breach  assigned. 

In  the  view  I  have  taken  of  this  case,  the  liability  of  the 
sureties  rests  upon  the  recital  of  the  condition  of  the  bond, 
that  he  was  in  fact  collector  of  assessments  for  street  im- 
provements. By  the  charter,  street  improvements  and  build- 
ing sewers  are  different  things ;  the  latter  is  not  included  in 
the  former,  and  Harrison  might  well  be  a  collector  of  assess- 
ments for  street  improvements,  and  not  of  sewer  assessments. 
The  sureties  ought  not  to  be  held  upon  this  bond  upon  their 
admissions  beyond  its  fair  limits:  estoppels  by  deed  are  to 
be  strictly  construed. 

They  have  admitted  that  Harrison  was  a  duly  appointed 
collector  of  assessments  for  street  improvements,  nothing 
more.  They  agreed  to  be  liable  for  all  he  should  receive  as 
such. 

The  ordinance  is  not  incorporated  into  the  bond  by  re- 
ference, so  that  the  sureties  may  be  held  to  have  admitted 
that  it  was  a  part  of  his  duties  to  collect  sewer  assessments. 

This  breach  is  not  well  assigned,  and  there  should  be 
judgment  for  the  defendants  upon  it.  As  to  the  others,  the 
judgment  must  be  for  the  plaintiff. 

CITED  in  Paret  v.  Sayonne,  10  Vroom  564 ;  Ordinary  v.  Cooley,  1  Vroam 
181. 


80  NEW  JERSEY  SUPREME  COURT. 


State  v.  Snedeker. 


THE  STATE,  GARRET  A.  SNEDEKER,  PROSECUTOR,  v.  THOMAS 
S.  SNEDEKER  ET  AL. 

1.  Where  a  turnpike  road  has  bt-en  abandoned  for  many  years  by  the 
company  which  built  it,  and  has  been  used  by  the  public  as  an  ordi- 
nary highway,  and  repaired  at  the  public  expense,  it  becomes  subject 
to  the  laws  concerning  roads,  and  the  surveyors  of  the  highways  have 
power  to  vacate  it. 

2.  A  plaintiff  in  cerliorari  cannot,  unless  holding  the  rights  of  the  turn- 
pike cor|x>ration,  assign,  as  a  reason  for  setting  aside  the  action  of  the 
surveyors,  that  it  is  in  violation  of  the  rights  of  the  company. 

3.  Every  citizen  is  interested,  more  or  less,  in  every  highway,  and  has  a 
right  to  submit  any  questions  affecting  such  interests  to  the  court. 


In  matter  of  road.     On  certioran  to  the  Middlesex  Pleas. 

In  1860,  an  application  was  made  to  the  Court  of  Common 
Pleas  of  Middlesex  for  the  appointment  of  surveyors  of  the 
highways  to  vacate  a  certain  road,  then  used  as  a  public 
highway,  in  the  township  of  Monroe,  in  said  county.  The 
appointment  was  made,  and  the  surveyors,  after  viewing  the 
premises,  vacated  the  road,  and  made  return  of  their  pro- 
OfffdifTgB  according  to  law. 

Garret  A.  Snedeker,  the  prosecutor,  a  citizen  interested  in 
the  continuance  of  the  road,  sued  out  a  writ  of  ccrtiorari, 
and  removed  the  proceedings  into  this  court,  and  has  as- 
signed various  reasons  for  setting  them  aside.  The  principal 
reasons  are,  that  the  road  vacated  by  the  surveyors  was  not 
a  public  highway  within  the  meaning  of  the  act  concerning 
roads  ;  that  it  was  a  part  of  a  turnpike  road,  constructed  under 
authority  of  an  act  to  incorporate  a  comjwny  to  erect  a  turn- 
pike road  from  Bordentown  to  South  Am  boy,  jMixsod  in  181G  ; 
that  the  charter  of  said  company  had  not  expired,  nor  had 
it  been  forfeited,  but  remained  in  full  force ;  that  the  land 
on  which  the  road  was  built  had  been  conveyed  in  fee  simple. 
to  the  company,  who  are  still  the  owners,  and  therefore  that 
the  surveyors  had  no  authority  to  vacate  the  said  highway. 

Evidence  wais  taken,  on  both  sides,  under  authority  of  the 


JUNE  TERM,  1862.  81 


State  v.  Snedeker. 


«ourt,  from  which  it  appeared  that  the  road  vacated  was  part 
of  the  Bordentown  and  South  Amboy  turnpike  road,  as  origi- 
nally built  by  the  company,  in  1817,  and  that  it  had  been 
traveled  by  the  public  from  that  time  until  about  two  or  three 
years  before  the  application  to  vacate  was  made,  within  which 
period  the  travel  was  interrupted  by  fences  put  across  the  road 
on  several  occasions,  which  were  taken  up,  and  gave  rise  to 
disputes.  It  further  appeared  that,  since  1833,  the  turnpike 
company  had  held  no  election  for  officers,  and  had  ceased  to 
exercise  their  corporate  franchises,  or  collect  tolls,  or  transact 
any  business;  that  the  road  had  been  left  open  to  public  use, 
and  that  the  part  vacated  had  been  taken  possession  of  and 
worked  by  the  township. 

The  case  was  argued  before  Justices  BROWN  and  VREDEN- 

BURGH. 


the  prosecutor,  A.  V.  Schenck. 
For  the  defendants,  H.  V.  Speer. 

The  opinion  of  the  court  was  delivered  by 

VREDENBTJRGH,  J.  The  first  reason  assigned  for  reversal 
is,  that  at  the  preceding  term  of  the  Middlesex  Pleas,  they 
had  appointed  surveyors  to  view  and  vacate  this  road,  who 
had  made  no  return.  But  I  do  not  find  any  legal  evidence  in 
the  return  or  paper  that  any  such  appointment  had  been  made. 
If  any  had  been,  it  should  have  appeared  by  a  duly  certified 
copy  of  the  record  of  appointment. 

All  the  other  reasons  are  embraced  in  the  general  one,  viz. 
that  the  surveyors  had  no  jurisdiction  of  the  subject  matter. 

It  appears,  by  the  case,  that  the  locus  in  quo  is  a  portion 
of  the  old  Bordentown  and  South  Amboy  turnpike,  chartered 
in  1816,  and^  built  in  1817,  and  that  the  company  has  ceased 
to  exercise  any  rights  or  duties  over  it  since  1833,  and  since 
that  time  it  has  been  worked  by  the  public  authorities,  and 


82  NEW  JERSEY  SUPREME  COURT. 

State  T.  Snedeker. 

used  by  the  public  generally  as  a  public  highway,  and  that 
the  surveyors  of  the  highways,  under  the  appointment  of  the 
Middlesex  Pleas,  vacated  the  portion  in  controversy  on  the 
loth  November,  1860 — to  set  aside  which  vacation  this  certi- 
orari  is  brought. 

It  does  not  appear  that  the  prosecutor  of  the  certiorari  is 
either  a  director  or  stockholder,  or  any  way  interested  in 
the  turnpike  company.  It  is  not  a  question,  therefore,  be- 
tween the  surveyors  or  the  applicants  and  the  turnpike  com- 
pany. The  prosecutor  has  no  rights  by  reason  of  any  re- 
lation to  the  turnpike  company.  If  the  prosecutor  has  any 
rights  in  relation  to  the  action  of  the  surveyors  it  is  not  lie- 
cause  the  locus  in  quo  is  a  turnpike,  but  because  it  is  a  public 
highway.  The  proof  is  that  the  locus  in  quo  has  been  an 
ordinary  public  highway  since  1833,  used  and  worked  by  the- 
public.  Every  citizen  is  interested,  more  or  less,  in  every 
highway,  and  has  a  right  to  submit  any  questions  affecting 
such  interests  to  the  courts;  so  that  the  prosecutor  has  a  right 
to  take  the  opinion  of  this  court  whether  the  locus  in  quo 
has  been  legally  vacated  by  the  surveyors  as  a  public  high- 
way. 

The  prosecutor  objects  that  the  surveyors  have  no  juris- 
diction of  this  matter,  because  the  locus  in  quo  was  origi- 
nally made  a  highway  by  authority  of  a  charter,  and  as  a 
turnpike,  and  by  a  turnpike  company.  But  it  was  none  the 
less  a  highway  because  it  was  :i  turnpike.  When  first  built 
and  opened  by  the  company  it  was  a  highway,  and  it  has 
ever  hint*  so  remained.  As  Ix-tween  the  stockholder!  and 
the  surveyors  of  the  highways,  the  surveyors  had  no  power 
to  alter  the  rights  of  the  company  l>ecause  they  held  under 
a  special  act  of  the  legislature ;  but  if  the  stockholders  chose 
to  waive  their  rights  under  the  charter,  no  other  persons  can 
step  in  and  say  they  shall  not,  or  assume,  as  against  the 
public,  their  rights.  Supjx»se,  instead  o£  bringing  this  ccrti- 
orari,  the  prosecutor  had  undertaken  to  put  up  tollgates,  and 
make  the  public  pay  toll.  Such  acts,  as  against  the  public, 
would  clearly  1«  illegal  and  void.  Nor  can  the  prosecutor,. 


JUNE  TERM,  1862.  83 


State  v.  Snedeker. 


when  the  public  are  using  it  as  a  highway,  set  up  any  rights 
as  representing  the  turnpike  company.  When,  therefore, 
the  turnpike  company  abandon  their  rights  as  a  chartered 
company  over  a  laid  out  turnpike,  the  turnpike  remains  as 
a  public  highway  like  any  other  highway,  and  subject  to 
any  general  laws  regulating  highways,  and  especially  so  if  it 
has  been  accepted,  used,  and  worked  by  the  public  as  such. 
When,  therefore,  the  surveyors  of  the  highways,  under  their 
appointment,  came  to  act  on  the  locus  in  quo  they  had  juris- 
diction over  the  subject  matter,  not  because  it  was  a  turnpike, 
but  because  it  was  a  public  highway.  The  surveyors  found 
it  de  facto  a  highway,  and  it  was  a  matter  indiiferent  to 
their  jurisdiction  how  it  originated,  whether  by  long  usage, 
dedication,  or  laid  out  by  surveyors  originally  under  author- 
ity, as  this  was,  of  a  special  charter.  In  dealing  with  it, 
their  authority  was  only  limited  by  the  rights  of  the  turn- 
pike company,  which  the  company  could  waive  if  they  saw 
fit,  and  which  no  one  not  holding  under  them  has  a  right  to 
raise;  therefore  the  power  and  jurisdiction  of  the  surveyors 
over  this  highway  is  the  same  as  they  have  over  any  other 
highway,  except  only  as  to  those  holding  under  the  turnpike 
company,  and  entitled  to  their  chartered  rights. 

The  question  therefore  is,  as  between  these  parties,  what 
are  the  powers  of  the  surveyors  over  the  locus  in  quo  con- 
sidered as  a  public  highway,  however  originating? 

It  does  not  appear,  by  the  case,  that  the  locus  in  quo  is 
in  any  street  in  any  of  the  cities,  towns,  or  villages  in  the 
state.  It  does  not  appear  that  the  prosecutor  adjoins,  or 
has  built  or  made  any  improvements  adjoining  or  upon  the 
locus  in  quo,  or  has  made  any  improvements  upon  the  faith 
of  this  being  and  remaining  a  public  highway.  It  would  be, 
I  think,  a  very  grave  question  if  a  person  had  built  upon 
and  made  valuable  improvements  adjoining  upon  a  highway, 
upon  the  faitli  of  its  remaining  such,  whether  the  surveyors 
could  receive'  from  the  legislature  constitutionally  any  power 
to  vacate  any  public  highway  rendering  his  improvements 
valueless,  or  greatly  diminishing  their  value;  or  if  they  could 
vacate  it  as  a  public  highway,  whether  the  owners  of  the  soil 


84  NENV  JERSEY  SUPREME  COURT. 


Slate  v.  Snedeker. 


could  shut  it  up.  These  are  questions  which  may  Income  of 
very  great  importance,  but  I  am  not  aware  that  any  judicial 
action  has  been  ever  had  thereon.  But  however  important, 
they  are  not  necessary  to  be  decided  in  the  present  case,  be- 
cause it  does  not  appear,  by  the  return  or  the  evidence,  that 
the  prosecutors  have  any  such  interest.  It  does  not  appear 
that  they  have  any  interest  in  the  question,  except  as  citizens 
of  the  state  living  off  from  the  locus  in  yuo,  and  only  interested 
in  it  to  the  extent  of  using  it  occasionally  for  the  right  of 
passage;  no  more  legal  interest  in  the  question  than  the  in- 
habitants of  Sussex  or  Warren  may  have.  The  question  is 
therefore  the  general  one — had  the  surveyors  of  the  highways 
constitutional  ] rawer  to  vacate  an  ordinary  highway  in  the 
open  country,  UJMHI  which  were  no  towns,  villages,  or  cities, 
and  no  improvements  made  by  the  prosecutors? 

Thin  is  the  first  time  that  the  question  has  been  raised,  as 
far  as  I  am  aware.  As  long  as  it  remains  a  public  highway 
the  public  are  liable  for  its  repairs,  and  they  have  a  clear  right 
to  relieve  themselves  from  its  burthen  whenever  it  is  judi- 
cially established  that  it  is  no  longer  necessary  for  the  public 
use.  When  it  affects  private  rights  by  means  of  buildings  or 
improvements  on  its  line,  it  is  another  question,  upon  which 
the  court  wishes  to  be  understood  as  expressing  no  opinion. 
This  locujt  in  quo  is  now  a  highway.  The  township  have 
accepted  it  by  keeping  it  in  repair  for  twenty  years;  they 
are  indictable  for  not  repairing.  The  only  way  of  relieving 
the  township  from  this  exj>cnse  is  by  the  action  of  the  sur- 
veyors vacating  it.  We  must  assume,  u|>on  this  argument, 
that  it  is  useless  as  a  highway.  How  is  the  township  ever  to 
relieve  it*elf  from  this  cxj>en>e  if  it  cannot  be  vacated  ?  A 
uselen  charge  would  be  created  in  jwrpetuity,  if  the  sur- 
veyors have  no  jurisdiction  of  the  subject  matter.  I  think 
that,  as  between  the  litigants  here,  the  surveyors  clearly  had 
jurisdiction,  and  that  their  proceedings  must  be  affirmed. 

Proceedings  of  the  surveyors  affirmed. 

ClTED  in  W<»nl  r.  //car*/,  >t  Vroom  HI  ;  Stetit,  Gregory,  pro*.,  v.  Jersey  City, 
6  Vroom399;  Stntt,  HwUon  Co.  Lawl  Imp.  Co.,  }>rot.,  v.  Seymour  et al.,  Cbm'ra, 
6  Vroom  89;  Attorney  General  r.  M.  A  K.  It.  R.  On.,  4  C.  E.  Green  394. 


JUNE  TERM,  1862.  85 


Doremus  v.  Bush. 


JOSEPH  DOREMUS  v.  JOHN  M.  BUSH. 

A  debtor  under  bond,  usually  called  an  insolvent  bond,  need  not  surren- 
der, and  be  placed  in  closed  confinement  before  the  filing  of  an  un- 
dertaking by  a  creditor.  Until  the  Court  of  Common  Pleas,  for  some 
reason,  make  a  final  decision  in  the  matter,  the  debtor  is  not  bound  to 
surrender  himself  into  custody. 


On  certiorari  to  the  Essex  Pleas.     In  matter  of  insolvency. 

The  case  was  heard  upon  the  following  statement  of  facts, 
agreed  on  by  the  counsel  of  the  parties  respectively. 

The  said  Joseph  Doremus,  as  surviving  partner  of  Peter 
and  Thomas  L.  Doremus,  obtained  a  judgment  against  the 
said  John  M.  Bush,  on  the  5th  day  of  March,  1860,  in  the 
court  for  the  trial  of  small  causes,  before  Jonas  S.  Crum,  esq., 
a  justice  of  the  peace  in  and  for  said  county,  for  the  sum  of 
ninety  dollars  and  ninety-five  cents,  including  costs;  and  an 
execution  on  said  judgment  against  the  body  of  said  Bush 
was  issued  out  of  said  court,  on  the  8th  of  the  same  month, 
by  virtue  of  which  said  Bush  was  arrested  by  a  constable, 
and  gave  bond  to  apply  for  the  benefit  of  the  insolvent  laws 
of  New  Jersey,  according  to  the  statute  entitled  "an  act 
abolishing  imprisonment  on  civil  process  in  certain  cases." 
He  accordingly  applied  to  the  Court  of  Common  Pleas  of 
said  county,  who  appointed  the  26th  day  of  June  last  as  the 
time  for  hearing  said  application,  at  which  said  time  the  said 
Bush,  and  the  said  Doreraus,  as  opposing  creditor,  appeared 
before  the  court.  The  said  Bush  was  examined,  and  the 
•court  being  about  to  discharge  him,  the  said  Doremus  filed 
his  undertaking  according  to  the  eighth  section  of  the  act 
€ntitled  "an  act  for  the  relief  of  persons  imprisoned  on  civil 
process."  Whereupon  the  said  Bush,  although  he  had  not 
obtained  his  discharge,  went  at  large,  without  surrendering 
himself  to  the  sheriff  or  keeper  of  the  jail  of  said  county, 
nor  giving  to  the  said  sheriff  or  keeper  the  bond  mentioned 
in  the  act  of  24th  of  February,  1850,  entitled  "a  further 


86  NEW  JERSEY  SUPREME  COURT. 

Doremus  v.  Bush. 

supplement  to  the  act  entitled  an  act  for  the  relief  of  persons 
imprisoned  on  civil  process,"  approved  April  16th,  1846. 

The  said  Bush  nevertheless  tiled  his  declaration  and  repli- 
cation to  the  plea  of  the  said  Doremus  (pro  ut  the  same), 
and  the  cause  came  on  for  trial,  November  1st,  1860,  before 
the  Common  Pleas  aforesaid.  Before  the  jury  were  empan- 
eled, the  counsel  of  said  Doremus  moved  the  court  to  quash 
all  further  proceedings,  upon  the  ground  that  the  court  had 
no  jurisdiction  in  the  premises,  by  reason  of  said  Bush  being 
at  large  as  aforesaid,  by  which  his  bond,  given  to  the  con- 
stable as  aforesaid,  had  become  forfeited.  After  argument, 
the  court  overruled  the  objection,  and  ordered  on  the  trial, 
ami  such  proceedings  were  subsequently  had,  that  said  Bush 
was  discharged  by  verdict  and  judgment  of  the  said  court 
thereupon. 

The  main  reason  relied  on  for  the  reversal  of  the  judgment 
was  that  the  Court  of  Common  Pleas  could  not  legally  try 
the  case,  or  give  judgment  of  discharge  thereon,  because  the 
said  Bush  was  not  in  actual  custody. 

For  the  plaintiff  in  certiorari,  W.  K.  McDonald. 
For  the  defendant,  L.  C.  Grocer. 

VKEDKNHUKGH,  J.  Bush  was  arrested  by  virtue  of  an 
execution  against  his  body,  issued,  at  the  suit  of  Doremu.s, 
out  of  the  court  for  the  trial  of  small  causes,  and  gave  bond 
to  apply  for  the  Ixmetit  of  the  insolvent  laws,  under  the  "act 
abolishing  imprisonment  on  civil  process  in  certain  cases." 
JVIx  Dig.  331,  §  9.*  The  Common  Pleas  appointed  the  20th 
June,  1860,  for  hi*  hearing,  when,  u|>on  his  examination,  the 
court  being  about  to  discharge  him,  Doremus  filed  his  under- 
taking, under  the  eighth  sec-lion  of  the  act  for  the  relief  of 
persons  imprisoned  on  civil  process  (Nix  Dig.  352,  §  8),f 
whereupon  Bush  went  at  large,  although  he  had  not  obtained 
hia  discharge,  neither  surrendering  himself  to  the  sheriff, 
nor  giving  any  bond  under  the  act  of  the  24th  February, 

,  p.  497,  f  2.    IRtt.,  p.  600,  {  13. 


JUNE  TERM,  1862.  87 


Doremus  v.  Bush. 


1858.  Nix  Dig.  384.*  Bush,  however,  went  on  and  filed  his 
declaration,  upon  which  issue  was  joined.  In  November, 
1860,  the  cause  was  tried  before  a  jury.  Before,  however, 
the  jury  were  empaneled,  Doremus  moved  the  court  to  quash 
all  farther  proceedings,  on  the  ground  that  the  court  had  no 
jurisdiction,  by  reason  of  Busli  being  at  large.  The  question 
is,  had  the  Pleas  of  Essex  jurisdiction  of  the  case  at  the  time 
it  came  on  for  trial  before  the  jury? 

At  the  common  law,  when  a  man  was  arrested  for  debt,  he 
stayed  in  prison  until  he  paid  either  the  debt  of  the  plaintiff 
or  the  debt  of  nature.  The  act  of  1795,  revised  in  1846, 
(Nix.  Dig.  351)  allowed  a  debtor  in  actual  confinement  to 
apply  to  be  discharged  by  the  Common  Pleas.  Under  this 
act,  the  court  obtained  jurisdiction  by  virtue  of  the  imprison- 
ment. The  act  of  April  15th,  1846,  (Nix.  Dig.  331)f  to  a 
certain  extent  abolished  imprisonment  for  debt.  Its  first 
section  prescribes  that  any  person  held  in  custody  by  any 
officer  in  any  civil  action  shall  be  discharged  from  custody 
by  such  officer.  As  a  matter  of  course,  this  took  away  from 
the  Common  Pleas  all  jurisdiction  over  such  debtor  as  a 
person  in  custody.  The  debtor  was  discharged  from  custody 
by  the  express  provisions  of  the  act.  This  discharge,  it  is 
true,  was  upon  certain  conditions;  but  those  conditions  being 
complied  with,  the  discharge  from  custody  was  none  the  less 
complete.  Unless,  therefore,  the  Pleas  get  jurisdiction  in 
some  way,  otherwise  than  by  means  of  the  applicant  being 
in  custody,  their  whole  jurisdiction  over  the  matter  was 
gone,  and  the  execution  against  the  debtor  was  a  nullity  as 
regards  the  creditor.  The  Pleas,  however,  did  get  jurisdic- 
tien  over  a  debtor  at  large  under  this  act  by  reason  of  the 
following  provisions  of  the  act,  viz.  that  the  discharge  from 
custody  should  be  upon  the  condition  that  the  debtor  shall 
give  bond  to  the  officer  conditioned  for  the  appearance  of 
the  debtor  at  the  next  Court  of  Common  Pleas,  and  petition 
said  court  fof  the  benefit  of  the  insolvent  laws,  and  would 
comply  in  all  things  therewith,  and  would  appear  in  person 

*Rev.,  p.  500,  I  13.    ^Rev.,  p.  857,  \  58. 


*8  NEW  JERSEY  SUPREME  COURT. 

Doremus  v.  Bush. 

at  every  subsequent  court  until  he  shall  be  discharged  as  an 
insolvent  debtor;  and  if  refused  a  discharge,  shall  surrender 
himself  immediately  thereafter  to  the  keeper  of  the  jail, 
there  to  remain  until  discharged  by  due  course  of  law.  And 
by  the  said  act  it  was  further  provided,  that  such  debtor 
shall  be  entitled  to  make  application  for  his  discharge  under 
the  insolvent  laws  at  the  next  or  any  subsequent  term  after 
such  arrest,  as  effectually  as  if  actually  confined  in  jail. 
This  gave  complete  power  to  the  Pleas  to  hear  and  discharge 
a  debtor  who  had  been  in  custody,  but  who  was  not  in  custody 
when  he  made  his  application  for  discharge. 

The  Pleas  thus  having  obtained  jurisdiction  of  the  subject 
matter,  the  next  question  is,  how  long  do  they  retain  it  ?  The 
necessary  inference  is,  until  the  final  determination  of  the 
cause — until  he  is  either  granted  his  discharge  or  refused  it. 

In  the  case  before  us,  the  debtor  did  make  his  application 
according  to  law  to  be  discharged,  and  at  his  instance,  a 
special  day  was  set  down  for  his  hearing  before  the  Pleas. 
At  such  hearing  the  court  were  satisfied  with  the  examination 
of  the  debtor,  but  the  creditors  were  not.  The  court  were 
about  to  discharge  him,  when  the  creditors  entered  into  the 
stipulations  required  in  such  case  by  the  eighth  section  of 
the  act  (Nix  Dig.  378),*  whereupon  the  court  remanded  the 
said  debtor  to  prison.  The  debtor  did  not,  however,  not- 
withstanding such  remanding,  surrender  himself  into  cus- 
tody, but  remaining  at  large,  went  on  filing  his  declaration 
under  the  insolvent  laws,  upon  which  the  usual  issue  was 
joined  and  trial  had,  when  the  jury  found  for  the  debtor,  and 
the  Pleas  discharged  him.  The  plaintiff  in  certiorari  con- 
tends that  this  discharge  by  tin-  Pleas  was  illegal,  because  the 
debtor  was  not  in  actual  custody  at  the  trial  before  the 
jury.  He  contends  that  when  the  creditors  filed  their  stipu- 
lation the  debtor  should  have  gone  immediately  into  custody. 
In  this  I  think  the  plaintiff  i*  tinder  a  misapprehension.  By 
filing  the  stipulation,  the  creditors  had  put  it  out  of  the 
jx>wer  of  the  court  to  JMISS  a  final  decree.  Before  any  final 

•J2«,p..jOO,  J  13. 


JUNE  TERM,  1862. 


Doremus  v.  Bush. 


decree  by  the  court  could   be  made,  the  creditors  appealed; 
from  the  court  to  the  jury. 

The  stipulation  by  creditors,  in  legal  effect,  was  to  con- 
tinue the  cause,  not  to  settle  it.  It  was  merely  laid  over  to 
be  tried  by  a  jury.  The  order  remanding  the  debtor  to 
prison  was  a  nullity.  It  was  an  order  which  the  Pleas  had 
no  power  to  make.  In  this  regard  the  power  of  the  court 
was  regulated  by  the  act  abolishing  imprisonment  in  certain 
cases,  and  not  by  the  act  for  the  relief  of  persons  imprisoned. 

This  is  further  manifest  by  the  condition  of  the  debtor's 
bond,  given  to  the  officer  on  his  discharge.  The  condition 
is,  that  be  will  appear  at  every  subsequent  court  until  dis- 
charged, and  if  refused  a  discharge,  surrender.  He  is  bound 
to  surrender  only  upon  a  refusal  of  the  court  to  discharge. 
Now  this  refusal  to  discharge  cannot  happen  when  the  court 
are  willing  to  discharge,  and  are  only  hindered  from  doing  .so: 
by  the  creditors  entering  into  the  stipulation.  The  for- 
feiture of  the  bond  for  a  refusal  to  discharge  can  only  happen 
by  the  final  decree  of  the  court.  This  may  happen  at  the 
special  hearing  if  the  court  are  not  satisfied,  and  they  refuse 
on  that  account  to  discharge,  or  it  may  happen  when  the 
court  make  a  final  decree  of  refusal  upon  the  verdict  of  the 
jury.  But  until  the  court,  for  some  reason,  make  a  final  de- 
cree in  the  matter,  the  debtor  is  not  bound  to  surrender  him- 
self into  custody.  What  is  meant  in  the  bond  by  the  term 
refusal  to  discharge,  is  denned  in  the  statute  itself  (Nix.  Dig. 
380,  §  10,)*  which  provides,  that  if  it  shall  appear  to  the  court, 
or  by  the  verdict  of  a  jury,  that  the  debtor  has  concealed 
any  property  with  intent  to  defraud,  the  said  debtor  shall  be 
refused  his  discharge,  and  the  said  court  shall  remand  him  to 
prison.  Now  this  tenth  section  was  originally  enacted  long 
before  the  act  authorizing  the  bond,  and  it  is  apparent  that 
the  language  of  the  bond  was  intended  to  refer  expressly  to 
this  tenth  section.  The  refusal  mentioned  in  the  condition 
of  the  bond  Is  the  refusal  spoken  of,  in  this  tenth  section. 
It  is  manifest,  therefore,  that  the  bond  was  not  intended  to 
be  forfeited  when  the  debtor  surrendered  himself  into  cus- 

*Eev.,  p.  501  g  15. 


90  NEW  JERSEY  SUPREME  COURT. 

Dorenms  v.  Bush. 

tody,  nor  that  the  Pleas  l>e  ousted  of  jurisdiction  by  the 
creditor's  stipulation,  ami  the  debtor  then  declining  to  go 
to  jail.  These  consequences  did  not  follow  until  the  court  had 
made  a  final  decree  of  refusal  to  discharge  for  fraud  in  the 
debtor.  This  has,  as  far  as  I  understand,  been  the  universal 
practice  in  this  state.  I  have  never  known  an  instance  of  a 
debtor  going  to  jail  merely  because  of  the  stipulation.  Why, 
if  this  be  so,  we  should  still  have  our  common  jails  crowded 
with  insolvent  debtors.  The  creditors  would  always  stipu- 
late, and  the  debtor  would  have  to  go  into  jail  immediately, 
and  remain  there  in  arcta  d  salva  custodia  without  the  pos- 
sibility of  release  until  all  ihe  law's  delays  were  satisfied. 

If  such  had  l>een  ever  deemed  to  be  the  law,  it  could  not, 
I  apprehend,  have  been  left  for  the  legislature  of  1858  to 
make  the  discovery.  But  the  plaintiff  in  certiorari  contends 
that  it  is  apparent  that  the  debtor,  upon  the  stipulation  being 
filed,  is  bound  to  go  to  jail,  from  the  provisions  of  the  act  of 
February  24th,  1858,  3  Nix.  Dig.  384,  §  1.*  This  provides 
that  any  debtor  who  shall  be  remanded  to  prison  under  the 
eighth  section  of  the  act  of  1795  is  authorized  to  give  the 
jailor  a  bond  to  the  creditors,  conditioned  that  such  debtor 
shall,  in  all  things  remaining,  comply  with  the  requirements 
of  the  insolvent  laws,  and  shall  apj>ear  U'fore  the  court  ac- 
cording to  law,  and  if  refused  a  discharge,  surrender  himself 
immediately  to  the  jailor,  <tc.  Under  this  act,  the  plaintiff 
in  oertiorari  contends  that,  upon  the  creditor  stipulating 
under  this  eighth  section,  the  debtor  must  go  to  jail,  and 
there  stay  until  the  litigation  is  got  through  with.  And  it 
is  asked,  by  the  plaintiff  in  ccrtiarari,  if  this  is  not  the  office 
of  the  act  of  1858,  what  is  it  ?  I  answer,  its  office  is  not  to 
lock  up  the  insolvent  debtor,  but  to  discharge  him.  It  is  in 
furtherance,  and  not  in  restriction  of  the  wise  and  benevolent 
policy  of  modern  legislation,  which  is  to  punish  not  the 
honest,  but  only  the  fraudulent  debtor.  Before  the  act  of 
1858  wan  pasm-d,  if  the  debtor  was  so  unfortunate  as  not  to 
have  U-cn  able  to  give  Ixuid  In-fore  he  made  his  application 
or  before  the  -|»--.-i:il  hearing,  and  he  was  then  remanded  by 

•Rn.,p.  500  J  13. 


JUNE  TERM,  1862.  91 

Doremus  v.  Bush. 

the  creditor's  stipulation,  he  could^  not  be  discharged  from 
custody  at  all,  as  the  previous  acts  did  not  meet  such  cases,  and 
he  had  to  lie  in  jail  until  the  final  decree  upon  the  verdict  of 
the  jury.  It  was  to  meet  such  cases  that  the  act  of  1858  was 
passed ;  so  that  now  the  debtor,  until  he  is  adjudged  to  have 
acted  fraudulently,  can  be  discharged  from  arrest  upon  giving 
bond  that  he  will  try  the  question  of  fraud,  at  any  and  all  stages 
of  the  proceedings,  until  a  final  decree  of  fraud  is  made  against 
him.  I  am  of  opinion  that  there  was  no  error  in  the  Court  of 
Common  Pleas  of  Essex,  and  that  the  judgment  should  be 
affirmed. 

BROWN,  J.  The  certiorari  in  this  case  brings  up  the  pro- 
ceedings of  the  Essex  Common  Pleas  upon  the  application  of 
John  M.  Bush  for  the  benefit  of  the  insolvent  laws.  He  was 
arrested,  gave  bond  under  the  "act  abolishing  imprisonment  on 
civil  process  in  certain  cases,"  passed  April  15th,  1846,*  ap- 
plied and  had  his  hearing  on  a  day  appointed,  and  proved  to 
the  satisfaction  of  the  court  that  lie  had  complied  with  the  re- 
quirements of  the  insolvent  laws.  The  court  being  about  to 
order  his  discharge,  pursuant  to  the  sixth  section  of  the  act  for 
the  relief  of  persons  imprisoned  on  civil  process,  the  plaintiff 
filed  an  undertaking  according  to  the  eighth  section  of  the  same 
act,  so  that  he  was  not  discharged.  The  debtor  filed  his  decla- 
ration against  his  creditors,  and  the  plaintiff  his  plea,  and  on 
the  1st  of  November,  1860,  the  cause  came  on  for  trial.  Before 
the  jury  were  empaneled,  the  plaintiff  moved  to  quash  the  pro- 
ceedings, upon  the  ground  that  the  court  had  no  jurisdiction, 
because  the  debtor  was  not,  and  had  not  been  in  confinement 
as  an  insolvent  debtor,  he  having  continued  at  large  when  the 
undertaking  was  filed.  But  one  question  is  presented  by  the 
case,  and  that  is  whether  a  debtor  under  bond,  usually  called 
an  insolvent  bond,  must  surrender,  and  be  placed  in  close 
confinement  before  the  filing  of  an  undertaking  by  a  cred- 
itor. The  answer  to  this  question  depends  upon  the  proper 
construction  of  the  acts  above  referred  to.  The  act  abolish- 

*Eev.,  p.  497. 


92  NEW  JERSEY  SUPREME  COURT. 

Duremus  v.  Bush. 

ing  imprisonment  in  certain  cases,  which  authorizes  a  person 
arrested  upon  civil  process  to  give  bond  to  the  officer  making 
the  arrest,  was  passed  in  1830,  subsequent  to  the  original  act 
for  the  relief  of  j>ersons  imprisoned  upon  civil  process.  The 
two  acts  must  be  construed  together,  and  where  they  conflict 
the  later  enactment  abrogates  the  former. 

The  last  act  is  entitled  "an 'act  abolishing  imprisonment 
on  civil  process  in  certain  cases."  The  first  section  provides 
that  it  shall  not  be  lawful  to  arrest  or  imprison  the  person 
of  any  female  in  any  civil  action.  The  second,  that  any 
person  who  may  be  arrested  or  held  in  custody,  by  any 
sheriff,  constable,  or  other  officer,  in  any  civil  action  upon 
mesne  process  or  process  of  execution,  or  upon  an  attach- 
ment for  not  performing  an  award,  or  who  may  surrender  in 
discharge  of  l>ail,  shall  be  discharged  from  arrest  or  custody 
by  such  officer,  upon  giving,  under  oath,  an  inventory  of  his 
proj>erty  and  a  bond  to  the  plaintiff  in  the  action,  with  con- 
dition that  he  will  apj>ear  before  the  next  Court  of  Common 
Pleas,  and  petition  the  court  for  the  benefit  of  the  insolvent 
laws  of  this  state,  and  comply  with  the  requirements  of  said 
insolvent  laws,  and  apj>ear  in  person  at  every  sul>sequent 
court  until  he  shall  be  discharged  as  an  insolvent  debtor, 
and  if  refused  a  discharge,  surrender  himself  immediately 
thereafter  to  the  keej>er  of  the  common  jail,  there  to  remain 
until  discharged  by  due  course  of  law.  The  third  section 
provides  that  any  |>erson  arrested,  and  having  given  bond 
as  aforesaid,  shall  be  entitled  to  make  application  for  dis- 
charge under  the  insolvent  laws  of  this  state,  at  the  next 
or  any  Kubscquent  term  after  such  arrest,  as  fully  and  effect- 
ually as  if  he  or  they  were  actually  confined  in  the  common 
jail  of  the  county. 

The  defendant,  having  given  bond,  enjoys  the  immunity 
of  this  statute  until  he  is  refused  his  discharge  or  forfeits 
hi-  Ixnid.  The  refusal  to  discharge,  within  the  meaning  of 
the  Hwond  section,  must  l>e  on  the  merits,  not  such  refusal 
M  will  allow  of  a  new  application  nor  such  as  continues  the 
Mine  application  without  deciding  the  merits.  The  suspend- 


JUNE  TERM,  1862.  93 

Howeth  v.  Jersey  City. 

ing  the  power  of  the  court  to  discharge,  by  the  creditor  filing 
an  undertaking,  is  not  refusal  to  discharge ;  failure  to  surren- 
der in  such  case  does  not  forfeit  the  bond.  The  same  issue  yet 
undetermined  is  to  be  tried  by  jury,  &c.,  and  the  parties  are 
continued  in  court  for  the  purpose  of  the  new  trial.  Judg- 
ment is  not  yet  pronounced.  If  the  defendant  is  in  actual 
confinement,  he  is  remanded  for  the  purpose  of  holding  him 
until  the  trial.  If  he  has  given  bond,  he  has  still  the  right 
to  be  at  large,  so  that  he  continues  to  apply  by  filing  his  de- 
claration and  proceeding  according  to  law.  He  is  still  an 
applicant  for  the  benefit  of  the  insolvent  laws.  He  says,  in 
his  declaration,  that  he  has  complied  with  the  act  in  all 
things,  and  is  entitled  to  his  discharge.  The  creditor  denies 
this  by  his  plea,  and  upon  this  issue  the  trial  of  the  applica- 
tion proceeds  to  verdict.  Pursuant  to  the  verdict,  he  is 
either  discharged  or  refused.  If  refused,  his  bond  requires 
surrender ;  he  must  surrender,  or  it  is  forfeited.  The  court 
have  no  right,  at  any  time,  to  order  him  in  confinement. 

Judgment  of  the  Common  Pleas  affirmed. 
CITED  in  State,  ex  rel.  Ricardo,  v.  Common  Pleas  of  Passaic,  9  Vroom  183. 


THE  STATE,  JOHN  HOWETH  ET  AL.,  PEOSECUTOKS,  AND  THE 
MAYOK  AND  COMMON  COUNCIL  OF  JERSEY  CITY. 

Under  the  charter  of  Jersey  City,  only  such  resolutions  and  ordinances 
of  the  common  council  as  are  in  their  nature  final  need  be  presented 
to  the  mayor  for  approval ;  when  a  final  ordinance  provides  for  a  dif- 
ferent improvement  from  that  asked  for  in  the  petition  presented  to 
the  council,  and  specified  in  the  public  notice  given  according  to  the 
charter,  it  will  be  set  aside  and  held  void  as  against  the  prosecutors. 


The  certiorari  was  brought  to  set  aside  an  assessment  made 
by  the  common  council  of  Jersey  City  for  paving  and  other- 
wise improving  Bright,  street. 

The  principal  reasons  urged  are — -first,  that  the  resolution 
of  council  appointing  a  time  for  hearing  objections  to  the 
improvement  had  not  been  presented  to  the  mayor  for  his 

VOL.  i.  F 


94  NEW  JERSEY  SUPREME  COURT. 

Howetli  v.  Jersey  City. 

approval;  and  second,  that  the  ordinance  of  council  was  va- 
riant from  the  petition  and  notice  required  by  the  charter,  and 
therefore  unlawful  and  void. 

For  the  prosecutors,  /.  F lemming. 
For  the  defendant,  R.  D.  McCldland. 

The  opinion  of  the  court  was  delivered  by 

VREDENBURGU,  J.  The  first  reason  assigned  for  setting 
aside  this  assessment  is,  that  the  resolution  appointing  a 
time  for  the  hearing  of  objections  to  the  improvement  of 
Bright  street  was  not  presented  to  the  mayor  for  his  ap- 
proval. But  it  is  apparent  that  this  is  not  one  of  those  kind 
of  ordinances  or  resolutions  intended  by  the  charter  to  be 
presented  to  the  mayor.  It  is  only  the  final  resolution 
ordering  the  improvement  to  be  made  that  could  be  so  in- 
tended. 

The  language  of  the  charter,  Pamphlet  Laics  of  1851, 
|Mge  402,  §  26,  is,  every  ordinance  or  resolution,  before  it 
goes  into  effect,  shall  l>e  presented  to  the  mayor.  These  in- 
termediate proceedings  cannot  be  said  to  go  into  effect.  It 
is  only  the  final  law,  as  passed,  that  GUI  be  said  to  go  into 
effect 

It  might  as  well  l>e  said  that  each  intermediate  step  of  the 
legislature  in  passing  a  law  shall  IK:  presented  to  the  governor 
for  his  approval  or  veto.  This  is  further  manifested  by  the 
provision,  in  the  same  section,  that  if  the  ordinance,  after  its 
veto  is  pa*Hcd  by  two-thirda  of  the  council  it  shall  take  effect 
as  a  law,  and  if  not  returned  by  the  mayor,  it  shall  become  a 
law. 

The  next  reason  for  reversal  is  because  the  ordinance  pro- 
vides for  a  different  improvement  from  that  asked  for  in  the 
jK-'tiiioa  and  s|>ccificd  in  the  notice.  The  |>etition  was  to 
grade,  pave,  gutter,  and  flag  Bright  street,  from  Grove  to 
Jewcy  street,  where  not  already  done.  Bright  street  had 
been  opened  and  used  as  a  street  sixty  feet  wide  some  years 


JUNE  TERM,  1862.  95 

Howeth  v.  Jersey  City. 

before  this  application.  Buildings  had  been  put  up  on  the 
south  side  as  if  it  were  only  a  sixty  feet  street ;  the  owners 
had  bought  and  sold  upon  that  assumption.  It  was  practi- 
cally but  a  sixty  feet  street. 

The  petition  to  pave  Grove  street  was  presented  to  the 
council  on  the  21st  June,  1859.  The  advertisement  required 
by  the  charter  was  to  the  same  purpose.  The  original  ordi- 
nance, as  reported  to  the  council,  was  to  the  same  effect.  The 
hearing  was  had  on  the  30th  July,  1859,  and  the  improvement 
recommended  by  committee  of  council. 

On  the  20th  September,  1859,  the  ordinance  was  taken  up 
and  rejected,  but  afterwards,  at  the  same  meeting,  again  taken 
up  and  reconsidered,  and  laid  upon  the  table. 

At  an  adjourned  meeting,  on  the  27th  September,  1859,  the 
original  ordinance  was  altered  by  inserting,  after  the  words 
Bright  street,  where  they  occur,  the  words  "  at  lawful  width  of 
eighty  feet,"  so  as  to  read,  an  ordinance  for  filling  in  Bright 
street  at  the  lawful  width  of  eighty  feet,  and  passed ;  and  this 
assessment  is  made  for  paving  Bright  street  at  the  width  of 
eighty  feet.  Now  neither  the  return  to  the  certiorari  nor  the 
proof  shows  that  Bright  street  was  eighty  feet  wide,  but  the 
proof  is  direct  and  positive  that  it  was  only  sixty  feet  wide. 

These  facts  are  clearly  fatal  to  this  assessment.  In  the 
first  place,  it  was  taking  this  twenty  feet  from  the  prosecutors 
without  compensation ;  and  in  the  second  place,  having  taken 
it  for  nothing,  the  city  forces  the  owner  to  pay  for  its  im- 
provement for  the  city's  use.  In  the  next  place,  it  was  not 
the  improvement  advertised.  In  the  next  place,  this  altera- 
tion was  made  after  the  parties  interested  had  been  heard 
upon  the  original  application,  and  without  any  opportunity 
of  being  heard  before  the  council.  In  the  next  place, 
the  proceedings  ought  to  have  been  to  alter  and  widen  as 
well  as  to  pave,  so  that  the  width  of  the  land  taken  could 
have  been  -assessed.  If  this  proceeding  could  be  justified, 
the  city  authorities,  under  a  proceeding  to  pave  a  street  with 
houses  built  up  on  both  sides,  could  simply,  by  calling  a  street 
one  hundred  feet  wide,  instead  of  sixty,  its  actual  width, 


96  NEW  JERSEY  SUPREME  COURT. 

rfoweth  v.  Jersey  City. 

without  notice,  or  rather  under  a  false  notice,  and  without 
paying  a  cent  to  the  owners,  level  the  whole  street  even  with 
the  ground,  and  make  its  owners  pay  for  their  own  ruin. 

I  presume  this  action  of  the  city  authorities  has  been  in- 
duced by  the  result  of  the  suit  of  Holmes  v.  Jersey  City,  1 
Jfoadey  301.  But  that  case  only  decided  that,  as  between 
Jersey  City  and  Mr.  Holmes,  the  city  could  not  set  up  that 
it  was  a  street  only  sixty  feet  wide;  but  it  did  not  decide 
that,  as  between  the  city  and  these  prosecutors,  it  was  a 
street  eighty  feet  wide.  The  Court  of  Appeals,  in  that  case, 
did  not  decide  that  the  street  was  a  street  eighty  feet  wide, 
but  only  that  the  city  could  not  set  up  that  the  action  of  the 
surveyors  of  highways  did  make  it  a  sixty  feet  street:  they 
only  decided  that  it  was  not  a  street  either  eighty  or  sixty 
feet  wide,  and  therefore  the  authorities  of  Jersey  City  showed 
no  right  to  intermeddle  with  it.  Van  Vorst,  in  1835,  had 
dedicated  the  street  as  an  eighty  feet  street,  but  it  was  only 
upon  paper.  It  had  never  been  accepted  by  the  township, 
and,  being  thus  only  a  jKiper  road,  the  authorities  of  Jersey 
City  had  .surveyors  appointed  to  alter  it  to  a  sixty  feet  street, 
and  the  Court  of  Appeals  said  the  surveyors  of  the  highways 
could  not  alter  what  had  never  existed,  and  so  they  restrained 
the  city  from  proceeding  with  the  action  of  the  surveyors  of 
the  highways  as  valid,  and  left  Mr.  Holmes  to  his  private 
rights  as  a  lot  owner,  binding  upon  land  dedicated  to  the 
purposes  of  a  street.  But  this  part  of  Bright  street  had 
been  actually  opened  and  recorded  by  the  city,  and  paved 
and  built  upon,  and  was  de  facto  a  street  sixty  feet  wide 
years  before  this  application  to  pave,  and  they  had  no 
authority  to  widen  it  then  without  taking  proceeding!)  to 
alter  it  from  a  sixty  to  an  eighty  feet  street,  and  do  so  by 
merely  declaring  that  its  rightful  width  was  eighty  feet. 
This  view  of  the  case  makes  it  unnecessary  to  look  into  the 
other  reasons  urged.  This  assessment,  as  regards  the  prose- 
cutor*, mast  be  set  aside,  as  founded  upon  an  ordinance  void  as 
against  them. 

Assessment  set  aside. 

CITED  in  Ilaight  r.  Low,  10  Vroom  20. 


JUNE  TERM,  1862.  97 


Janeway  v.  Skerritt. 


GEOBGE  E.  JANEWAY  v.  JOSEPH  SKEEEITT. 

1.  When,  upon  the  trial  day,  the  defendant  moves  to  nonsuit  the  plain- 
tiff because  the  costs  of  two  former  suits  for  the  same  cause  of  action 
have  not  been  paid,  and  the  defendant  offers  to  pay  the  costs  forth- 
with, and  the  defendant  is  not  prepared  with  his  bills  of  costs  or  to 
show  the  amount  of  costs  due,  he  is  not  entitled  to  a  judgment  of 
nonsuit. 

"2.  The  statement  of  counsel  in  a  justice's  court,  made  several  months 
after  the  trial,  and  when  he  had  ceased  to  represent  his  client,  cannot 
bind  the  client. 


On  c&rtiomri  to  a  justice  of  the  peace  of  the  county  of 
Hudson. 

For  the  plaintiff,  C.  H.  Winfield. 
For  the  defendant, . 


The  opinion  of  the  court  was  delivered  by 

BROWN,  J.  This  case  was  submitted  on  written  briefs. 
It  appears  that,  upon  the  day  to  which  the  trial  of  this  cause 
was  adjourned,  the  defendant  below  moved  to  nonsuit  the 
plaintiff,  upon  the  ground  that  the  costs  of  two  former  suits 
for  the  same  cause  of  action  had  not  been  paid.  The  justice 
refused  to  nonsuit  for  this  cause.  In  answer  to  a  rule  of 
this  court,  the  justice  certifies  that  the  defendant  moved  for 
a  nonsuit,  and  not  for  a  stay  of  proceedings;  that  there  was 
no  certified  copy  of  costs  of  former  suit  presented  in  court, 
and  that  the  counsel  for  the  plaintiff  below  sent  out  for  gold 
in  exchange  for  bills,  held  it  in  his  hands,  and  asked  counsel 
for  the  defendant  below  to  produce  his  bill  of  costs,  and  that 
he  was  ready  to  pay  it :  and  further,  that  there  was  no  de- 
mand for  any  certain  amount  made  by  counsel  of  defendant 
below.  If  the  matters  stated  in  this  certificate  are  true,  the 
defendant  was  not  entitled  to  judgment  of  nonsuit.  If  Sker- 
ritt was  ready  to  pay  the  costs  due  Janeway,  when  notified 
of  the  amount,  and  payment  demanded,  no  more  could  be 


98  NEW  JERSEY  SUPREME  COURT. 

Coulter  v.  Kaighn. 

required  of  him.  If  Janeway,  or  his  counsel,  on  being  in- 
formed that  Skerritt  was  ready  to  pay,  did  not  inform  him 
what  amount  he  required,  the  fault  lay  with  him,  Janeway. 
But  the  plaintiff  here  insists  that  the  statements  of  the  jus- 
tice are  not  true,  and  he  relies  upon  a  letter  from  Mr.  JellitTe, 
the  counsel  of  Skerritt  in  the  court  below,  to  prove  it.  This 
letter  is  dated  March  12th,  1862,  several  months  after  the 
certiorat-i  was  returned,  and  after  Mr.  Jelliffe  ceased  to  re- 
present Skerritt  in  this  case.  Mr.  Jelliffe  could  not  then 
bind  his  former  client  by  any  statement  or  admission.  The 
letter  can  only  be  considered  as  the  declaration  of  an  agent 
after  his  agency  has  ceased.  It  is  not  legal  evidence.  The 
plaintiff  here  must  therefore  fail,  because  the  reason  assigned 
for  the  reversal  of  the  judgment  is  not  sustained  in  fact. 

Judgment  affirmed. 


STEPHEN   COULTER  v.  CHARLES  KAIGHN  AND  JAMES  M. 

COOPER. 

Upon  an  application  to  cancel  a  judgment  in  this  court,  on  the  ground 
that  certain  bonds,  to  which  the  defendants  alleged  the  judgment  was 
collateral,  had  been  paid  and  satisfied  by  the  acceptance  of  other 
bonds  of  a  like  amount,  the  court  will  not  interfere  where  it  appear* 
that  the  original  bonds  were  collateral  to  the  judgment,  and  thai  the 
new  l>< ^xls  were,  by  agreement,  substitutions  for  those  first  given.  By 
such  agreement,  the  defendants  are  estopped  from  denying  that  the 
judgment  was  merely  collateral. 

This  case  came  liefore  the  court  on  a  motion  to  order  satis- 
faction enteml  of  a  certain  judgment  confessed  by  the  de- 
fendants to  the  plaintiff,  on  the  I'.Mli  of  May,  1858,  for  the 
Mum  of  $19,996.58,  which  the  defendants  alleged  was  tri- 
lateral security  for  the  payment  of  certain  bonds  which  had 
been  given  by  the  defendants  to  the  plaintiff,  and  which 
bonds  had  l»  •  n  -.ni-l'ni|  and  paid. 

The  fact*,  as  presented  by  the  parties,  are  fully  given  in 
the  opinion  of  the  court. 


JUNE  TERM,  1862.  99 

Coulter  v.  Kaighn. 
For  the  motion,  P.  L.  Voorhees  and  A.  Browning. 

VREDENBURGH,  J.  The  plaintiff,  on  the  19th  May,  1858, 
entered  up  judgment  in  this  court  against  the  defendants  for 
$19,996.58  by  confession  on  bond  and  warrant  of  attorney. 
The  defendants  now  move  to  enter  satisfaction  on  the  ground 
that  the  judgment  has  been  paid.  The  bond  on  which  the 
judgment  was  entered  is  dated  on  the  23d  April,  1856.  It 
appears,  by  the  evidence,  that  at  the  date  of  the  bond  and 
warrant  the  plaintiff  had  judgment  against  the  defendants 
and  the  South  Camden  Ferry  Company  for  $9902.57. 

The  defendants  were  directors  of  the  company,  and  applied 
to  the  plaintiff  to  cancel  the  last  named  judgment.  The 
plaintiff'  agreed  to  it,  provided  the  defendants  would  give 
him  their  individual  bond  and  warrant  of  attorney  to  confess 
this  judgment,  being  the  one  now  in  controversy,  in  lieu  of 
their  previous  judgment,  and  also  twenty-four  bonds,  of  $500 
each,  secured  by  a  mortgage  on  the  property  of  the  ferry  com- 
pany, known  as  the  second  mortgage.  This  was  done. 

These  twenty-four  bonds  have  since  been  taken  up  by  the 
ferry  company,  and  twenty-four  other  bonds,  of  $500  each, 
secured  by  a  subsequent  mortgage  of  the  ferry  company,  ac- 
cepted by  the  plaintiff  in  lieu  of  them,  and  the  question  is,  if 
upon  these  facts  we  should  order  the  judgment  on  the  bond 
and  warrant  to  be  cancelled.  The  defendants  contend  that 
the  ferry  company  was  the  principal  debtor,  and  that  the 
judgment  bond  was  only  given  as  collateral  to  the  first  named 
twenty-four  bonds,  and  that  these  bonds,  being  paid  and  sat- 
isfied by  the  second  named  twenty-four  bonds,  the  judgment 
bond  was  paid. 

The  plaintiff  contends — first,  that  the  second  twenty-four 
bonds  were  substituted,  by  agreement,  for  the  first  named 
twenty-four  bonds  to  accommodate  the  defendants,  and  that 
there  was  no  payment ;  and,  secondly,  that  even  if  there  was 
no  agreement  to  substitute  the  second  twenty-four  bonds  for 
the  first  ones,  yet  that  the  first  twenty-four  bonds  were  col- 


100          NEW  JERSEY  SUPREME  COURT. 

Coulter  r.  Kaighn. 

lateral  to  the  judgment  bond,  and  not  the  judgment  bond 
collateral  to  the  first  twenty  four  bonds. 

Upon  both  or  either  of  these  questions  I  cannot  see  how 
there  can  be  any  doubt  or  hesitation,  as  both  parties  have  fur- 
nished the  evidence  in  writing. 

The  transaction,  as  it  took  place  on  the  6th  June,  1861, 
when  the  first  twenty-four  bonds  were  surrendered,  and  the 
second  set  taken,  was  reduced  to  writing  and  signed  by  all 
the  parties  interested,  by  the  defendants  as  well  as  by  the 
plaintiff,  and  we  have  it  here  as  Exhibit  Con  part  of  plaintiff'. 

This  agreement,  among  other  things,  recites,  that  whereas 
the  property  of  the  South  Camden  Ferry  Company  is  about 
to  be  sold,  and  whereas  Stephen  Coulter  and  others  are  the 
owners  of  all  the  bonds  issued  upon  the  second  mortgage,  the 
said  Coulter  being  the  holder  of  those  held  by  him  as  collat- 
eral security  for  a  certain  debt  or  debts;  and  whereas  the  said 
Coulter  and  others  are  willing  to  offer  to  the  owners  of  the 
third  mortgage  an  opportunity  to  protect  themselves,  now 
therefore  we  do  hereby  covenant  with  the  holders  of  the 
third  mortgage,  that  they,  the  holders  of  the  third  mortgage, 
as  our  trustees,  may  bid  to  the  amount  of  the  second  mort- 
gage, and  if  struck  oil'  to  them,  shall  pay  us  all  interest  on 
the  second  mortgage,  and  costs  and  fees,  &c.,  and  pay  off  the 
fir*t  mortgage,  that  then  the  sheriff  may  make  the  deed  to 
them,  provided  they  shall  make  bonds  to  the  said  Coulter  and 
•  •thers  for  the  principal  amounts  of  the  said  second  mortgage 
bonds,  that  is  to  the  said  Coulter  for  $12,000,  and  also 
execute  a  new  mortgage  to  secure  said  last  mentioned  bonds. 
The  defendant*  were  by  at  this  arrangement,  and  signed 
under  this  agreement  their  assent  in  writing,  as  follows: 
We,  James  M.  COOJKT,  Charles  Kaighn,  Knight  and  James 
Tut  in  II,  having  an  interest  in  the  bonds  held  by  Stephen 
Coulter  as  collateral,  and  the  debts  secured  thereby,  do 
«-"n-  in  to  tint  above  agreement.  This  agreement,  on  all 
aides,  linn  been  fully  carried  out.  The  sale  went  on  under  it, 
the  third  mortgagees  purchased,  p:iid  the  interest  in  arrears 
and  cx|»cnMCM,  the  plaintiff  (surrendered  up  his  first  twenty- 


JUNE  TERM,  1862.  101 

Coulter  v.  Kaighn. 

four  bonds  and  took  the  second  twenty-four  bonds  secured  by 
a  new  mortgage  of  the  purchaser ;  and  all  this  was  done  with 
the  knowledge,  consent,  and  co-operation  of  the  defendants. 

Now,  even  supposing  that  the  judgment  in  controversy 
was  only  collateral  to  the  first  twenty-four  bonds,  yet  the 
legal  effect  of  this  agreement  was  to  substitute,  by  an  agree- 
ment, the  second  twenty-four  bonds  in  their  place,  and  for 
which  the  collateral  still  remained  a  security  by  the  agree- 
ment of  the  parties.  The  substitution  was  no  payment  of  the 
first  twenty-four  bonds,  nor  of  the  indebtedness  they  were 
intended  to  secure.  We  can  give  no  other  legal  effect  to  the 
agreement  of  the  6th  June,  1861.  The  object  of  the  defend- 
ants' agreement  of  the  6th  June,  1861,  could  only  be  to  nega- 
tive the  conclusion,  that  the  substitution  of  the  new  bonds  for 
the  old  ones  should  operate  to  discharge  any  collaterals.  But 
again,  if  this  is  not  the  legal  effect  of  the  agreement  of  the 
6th  June,  1861,  it  is  conclusive  proof  that  the  defendants  are 
estopped  from  denying  that  the  first  twenty-four  bonds  were 
collateral  to  the  judgment  in  controversy,  and  not  the  judg- 
.ment  to  the  bonds. 

In  the  first  place,  the  agreement  of  the  6th  June  expressly 
says  that  the  twenty  four  bonds  are  collateral  security  for 
the  plaintiff's  debt ;  and  in  the  second  place,  their  own  writ- 
ten agreement,  signed  by  them,  says  that  the  bonds  are  held 
by  the  plaintiff  as  collaterals,  and  they  further  say  they  are 
interested  in  these  bonds.  Now  if  the  bonds  were  the  prin- 
cipal debt,  and  the  judgment  in  controversy  only  collateral, 
how  were  the  defendants  interested  in  the  bonds?  They 
could  not  be,  for  they  must  have  belonged  absolutely  to  the 
plaintiff.  The  defendants  could  only  be  interested  in  the 
bonds  upon  the  supposition  that  they  were  collateral  to  the 
judgment  now  sought- to  be  cancelled;  and  then  they  would 
be  interested;  for  if  the  judgment  should  be  cancelled  from 
other  sources,  the  bonds  would  revert  again  to  them.  It  is 
not  necessary  to  pursue  the  question  further,  for  even  if  the 
judgment  was  collateral  to  the  bonds,  the  defendants  an; 
estopped  from  denying  it  by  their  own  admission  in  writing 


102          NEW  JERSEY  SUPREME  COURT. 

State  v.  Williams. 

to  the  contrary  when  the  arrangement  of  the  6th  June,  1861, 
was  entered  into,  and  their  standing  by  and  receiving  the  first 
twenty-four  bonds  cancelled  under  such  their  agreement.  But 
even  without  this  agreement  of  June  6th,  1861,  it  is  apparent 
that  the  judgment  was  not  collateral  to  the  twenty-four  bonds 
or  to  anything  else. 

The  original  loan  to  the  ferry  company  was  upon  the 
credit  of  the  defendants.  It  was  on  notes  endorsed  by  them, 
and  when  the  first  twenty-four  bonds  were  taken,  judgment 
on  their  endorsed  notes  had  been  entered  up  against  them, 
and  at  their  request  that  judgment  was  cancelled  upon  their 
engagement  to  give  this  judgment  lx)nd,  which  was  done 
accordingly,  and  also  these  twenty-four  bonds  given.  Under 
these  circumstances,  the  judgment  bond  was  no  more  col- 
lateral to  the  twenty  four  bonds  than  the  twenty-four  bonds 
were  to  the  judgment.  Both  represented  an  original  indebt- 
edness, and  although  payment  of  one  was  payment  of  both, 
yet  a  mere  change  of  security  of  either  was  no  payment  or 
satisfaction  of  the  other.  It  is  true  the  plaintiff,  on  entering 
judgment  on  his  bond  and  warrant  of  attorney,  swears  that 
the  judgment  l>ond  was  collateral,  But  the  defendants  have 
also,  in  their  written  agreement,  said  the  twenty-four  bonds 
were  collateral.  Both  sides  intend  to  tell  the  facts  truly,  but 
both  draw  an  erroneous  conclusion  of  law  from  the  same 
fact-*,  |>erhaps  each  against  himself. 

The  motion  to  enter  satisfaction  is  denied  with  costs. 


THE  STATK  v.  UKORtiE  WILLIAMS. 

1.  Any  place  of  public  resort,  in  which  illegal  practiced  are  habitually 
carried  on,  or  when  it  becomes  the  liahitual  resort  of  thieves,  drunk- 
ard*, profftitiito*,  or  other  idle,  vicious,  and  disorderly  persons,  who 
gather  together  there  for  the  purpose  of  gratifying  their  own  depraved 
appelitei,  or  to  make  it  a  rendezvous  where  plans  may  be  concocted 
for  depredation*  UJMMI  society,  and  to  disturb  either  its  peace  or  it* 
righu  of  property,  i*  a  public  nuisance. 


JUNE  TERM,  1862.  103 


State  v.  Williams. 


2.  No  private  individual  has  a  right,  for  his  own  amusement  or  gain,  to 
carry  on  a  public  business  clearly  injurious  to  and  destructive  of  the 
public  quiet,  health,  or  morals,  and  is  indictable  for  so  doing,  because 
the  injury  is  of  a  public  character  to  the  public,  and  not  merely  pri- 
vate to  a  single  individual. 

3.  Violence  and   noise  are   not  necessary  constituents   of  a  disorderly 
house  ;  it  is  sufficient  to  show,  under  the  general  allegations,  a  house 
ill  governed  and  disorderly,  in  the  sense  stated,  to  warrant  a  conviction. 

4.  Any  person  who  keeps,  or  causes  to  be  kept,  for  his  own  profit  or 
amusement,  or  for  any  other  cause,  such  a  place  of  resort,  or  rents  any 
building  to  any  person   knowing  that  the  same  will  be  so  kept,  is 
guilty  of  an  indictable  misdemeanor. 

5.  To  justify  a  conviction  of  a  landlord,  who  rents  to  a  tenant  a  place 
kept  as  a  disorderly  house,  the  evidence  should  clearly  show  that,  at 
the  time  of  leasing,  the  landlord  knew  the  purposes  for  which,  or  the 
mode  in  which  the  house  was  to  be  kept. 

6.  The  mere  power  of  the  landlord  to  expel  his  tenant,  by  summary  pro- 
ceedings, for  nonpayment  of  rent  according  to  the  terms  of  the  letting, 
although  connected  with  the  failure  to  avail  himself  of  it  when  the 
house  has  been  disorderly,  does  not  of  itself  make  him  responsible. 

7.  Mere  nonfeasance  on  the  part  of  the  landlord  cannot  involve  him  in 
the  guilt  of  the  tenant ;  but  if  he  is  active  in  advising  the  keeping  of 
the  house  in  a  disorderly  manner,  or  in  aiding  or  assisting,  or  gives 
his  consent  and  approbation  to  its  being  so  kept,  he  becomes  a  partici- 
pant in  the  act  characterized  by  the  criminal  law  as  disorderly ;  but 
his  sanction  and  consent  ought  not  to  be  inferred  from  the  mere  fact 
of  his  non-interference  with  the  conduct  of  his  tenant,  without  some 
other  acts  or  declarations  on  his  part  giving  a  decided  character  to  his 
sanction  and  consent. 

8.  The  sale  of  liquor  on  the  Sabbath  day  is  unlawful,  and  a  practice  of  so- 
keeping  a  house  as  to  violate  the  law  is  to  make  it  disorderly. 


On  case  certified  for  the  advisory  opinion  of  this  court. 

The  defendant  was  indicted,  in  the  Court  of  Oyer  and  Ter- 
miner  in  and  for  the  county  of  Passaic,  for  keeping  a  disor- 
derly house.  The  indictment  was  in  the  usual  form.  Upon 
the  trial,  the  court  charged  the  jury,  among  other  things, 
that  selling  beer  on  Sunday  constituted  a  disorderly  house, 
if  the  jury  believed  that  the  defendant  made  it  a  practice  to 
do  so  whenevertie  had  customers. 

To  this  part  of  the  charge,  and  also  to  other  parts  (which 
are  referred  to  in  the  opinion  of  the  court)  the  defendant's- 


104         NEW  JERSEY  SUPREME  COURT. 

State  v.  Williams. 

rounsel  objected ;  and  the  defendant  having  been  found  guilty, 
the  advisory  opinion  of  this  court  is  requested  as  to  the  cor- 
rectness of  the  charge.* 

The  case  was  argued  by  A.  B.  Woodruff,  for  the  State,  and 
J.  Hojtper,  for  the  defendant. 

CHIEF  JUSTICE.  Any  place  of  public  resort,  whether  an 
inn,  a  dwelling  house,  a  storehouse,  or  any  other  building,  or 
garden,  is  a  public  nuisance,  in  which  illegal  practices  are 
habitually  carried  on,  or  when  it  becomes  the  habitual  resort 
of  thieves,  drunkards,  prostitutes,  or  other  idle,  vicious,  and 
disorderly  j>ersons,  who  gather  together  there  for  the  purpose 
of  gratifying  their  own  depraved  appetites,  or  to  make  it  a 
rendezvous  where  plans  may  be  concocted  for  depredations 
upon  society,  and  disturbing  either  its  peace  or  its  rights  of 
property. 

Such  collections  of  persons  cay  have  no  other  effect  than 
to  debauch  and  deprave  the  public  morals,  although  they 
may  IK;  quiet  and  orderly  places,  so  far  as  mere  noise  and 
confusion  is  concerned ;  although  the  most  scrupulous  clean- 
liness may  be  observed,  and  they  may  be  magnificent  in 
ornament,  and  luxurious  in  their  provisions  for  mere  sensual 
gratifications,  they  an-  notable  nuisances  at  common  law, 
l>ecause  they  are  nocumenti,  nuisances,  that  is,  injurious  to 
the  public  health,  public  quiet,  or  public  morals. 

No  private  individual  has  a  right,  for  his  own  amusement 
or  gain,  to  carry  on  a  public  business  clearly  injurious  to 
and  destructive  of  the  public  quiet,  health,  or  morals,  and  is 
indictable  for  so  doing,  because  the  injury  is  of  a  public  char- 
acter to  the  public,  and  not  merely  private,  or  to  a  single  in- 
dividual. 

It  is  a  mistaken  view  of  this  crime  to  hold  that  violence  or 
noise  disturbing  the  neighborhood  are  necessary  constituents 

•The  reporter  regret*  that  he  ha*  not  been  able  to  procure  a  copy  of 
the  charge  fur  insertion  in  the  COM. 


JUNE  TERM,  1862.  105 


State  v.  Williams. 


of  it.  The  indictments  usually  contain  averments  of  whoring, 
gambling,  tippling,  fighting,  cursing  and  swearing,  as  occur- 
ring habitually  at  the  place;  but  these  are  merely  descrip- 
tive averments,  and  need  not  all  be  proved.  It  is  sufficient 
to  show,  under  these  general  allegations,  a  house  ill-governed 
and  disorderly,  in  the  sense  stated,  to  warrant  a  conviction. 

This  is  the  rule  to  be  extracted  from  the  cases,  some  only 
of  which  will  be  referred  to,  among  the  many  cited  on  the 
very  able  and  interesting  argument  with  which  the  court  was 
favored  by  the  learned  prosecutor  who  argued  this  case  be- 
fore us.  Faulkner's  case,  1  Saund.  248 ;  2  Chitty's  Cr.  Law 
673-4  ;  King  v.  Rogier,  1  B.  &  C.  72 ;  King  v.  Taylor,  3 
B.  &  C.  502;  Tanner  v.  Trustees  of  Albion,  5  Hill  121;  King 
v.Moore,  3  B.  &  Ad.  184;  Bac.  Abr.,  tit.  Inns  (A);  Russell 
on  Crimes  320-326. 

Any  person  who  keeps,  or  causes  to  be  kept  for  his  own 
profit  or  amusement,  or  for  any  other  cause,  such  a  place  of 
resort  as  I  have  described,  or  rents  any  building  to  any  per- 
son knowing  that  the  same  will  be  so  kept,  is  also  guilty  of 
an  indictable  misdemeanor.  In  misdemeanors  all  are  prin- 
cipals— the  procurer,  the  accessory  before  the  fact,  and  the 
aider  and  abettor. 

To  justify  a  conviction  of  a  landlord  who  rents  to  a  tenant 
a  place  kept  as  a  disorderly  house,  the  evidence  should  clearly 
show  that,  at  the  time  of  leasing,  the  landlord  knew  the  pur- 
poses for  which,  or  the  mode  in  which  the  house  was  to  be 
kept.  The  mere  fact  of  his  being  landlord  of  a  disorderly 
house,  and  receiving  the  rent  of  it  earned  by  the  keeper,  is 
not  enough.  He  should  not  be  held  as  a  participator  in  the 
crime  of  his  tenant,  merely  because  he  does  not  remonstrate 
with  or  threaten  him  with  expulsion  if  he  does  not  control  his 
house  in  accordance  with  the  law. 

In  that  respect  the  liability  and  duty  of  the  landlord  is  no- 
more  than  that  jof  any  other  citizen ;  but  if  the  landlord 
rents  for  a  year,  and  the  house  during  the  year  is,  with  the 
knowledge  of  the  landlord,  kept  in  a  disorderly  manner,  so 
as  to  be  indictable,  and  notwithstanding  this  knowledge  he 


10G          NEW  JERSEY  SUPREME  COURT. 

State  v.  Williams. 

rents  to  the  same  tenant  for  another  year,  this  will,  in  most 
cases,  be  strong  evidence  to  charge  the  landlord  with  procur- 
ing the  house  to  be  so  kept. 

But  the  mere  power  of  the  landlord  to  expel  his  tenant  by 
summary  proceedings  for  nonpayment  of  rent  according  to 
the  terms  of  the  letting,  although  connected  with  the  failure 
to  avail  himself  of  it  when  the  house  has  been  disorderly, 
does  not  of  itself  make  him  responsible. 

Mere  nonfeasanee  on  the  part  of  the  landlord  cannot  involve 
him  in  the  guilt  of  the  tenant ;  but  if  he  is  active  in  advising 
the  keeping  of  the  house  in  a  disorderly  manner,  or  in  aiding 
and  assisting,  or  gives  his  consent  and  approbation  to  its  being 
so  kept,  he  becomes  a  participant  in  the  nets  characterized  by 
the  criminal  law  as  disorderly. 

But  his  sanction  and  consent  ought  not  to  be  inferred  from 
the  mere  fact  of  his  non-interference  with  the  conduct  of  his 
tenant,  without  some  other  acts  or  declarations  on  his  part 
giving  a  decided  character  to  his  sanction  and  consent. 

The  position  of  the  landlord  of  a  tenant  keeping  a  disor- 
derly house,  irrespective  of  the  act  of  letting  the  house  for 
the  purj>ose  of  being  so  used,  or  keeping  the  tenant  after  his 
character  and  business  become  known,  in  no  wise  differs  from 
that  of  a  stranger.  As  to  sanction  and  approval,  that  which 
would  make  a  stranger  liable  would  make  him  liable.  Com. 
v.  Hwriityton,  3  Pick.  28  ;  The  People  v.  Enoin  and  Clark,  4 
Denw  129;  1  Hawk.  P.  C.  Ch.  77. 

The  cases  cited  proceed  on  the  ground  that  in  misdemeanors 
all  are  principals,  and  that  aiding  in  the  commission  of  a  mis- 
demeanor, or  counselling  and  procuring  its  commission,  ren- 
ders the  aider  guilty  MS  a  principal.  In  those  two  cases  the 
lessee  of  a  bawdy-house,  and  one  who  leased  it  for  that  pur- 
jxwe,  were  held  both  as  keepers  of  it. 

To  apply  these  principl<>s  to  the  case  before  the  court,  the 
judge  at  the  oyer  charged  the  jury,  that  the  habitual  sale  of 
rurn  on  Sunday  by  the  defendant  made  his  house  a  nuisance, 
and  the  jury  seem  to  have  convicted  the  defendant  ujwn  this 
ground ;  for  when  polled  they  said,  at  least  some  of  them, 


JUNE  TERM,  1862.  107 

State  v.  Williams. 

that  they  agreed  to  the  verdict  because  of  the  instructions  of 
the  court  just  stated. 

The  defendant's  counsel  objected  to  the  instructions  mainly 
upon  the  ground,  that  such  acts,  unaccompanied  with  other 
circumstances,  did  not  constitute  the  house  disorderly;  that 
if  they  did,  the  defendant  might  be  punished  twice  for  the 
same  offence,  as  he  was  liable  to  indictment  for  each  act  of 
selling. 

If  the  argument  has  any  merit,  it  is  rather  specious  than 
sound.  We  have  already  seen  that  a  house  where  the  law 
is  habitually  violated  is,  if  a  place  of  public  resort,  a  nui- 
sance. 

The  argument  proves  too  much.  If  it  were  sound,  no  in- 
dictment for  keeping  a  disorderly  house  could  be  maintained. 
The  fighting,  cursing,  gambling,  tippling,  &c.,  said  to  be 
necessary  to  make  a  house  a  nuisance,  are  all,  or  most  of  them 
crimes,  and  punishable  as  such. 

The  offence  of  keeping  a  disorderly  house  or  nuisance 
consists  not  in  the  fact  that  the  keeper  commits  any  of  these 
crimes  himself,  but  that  he  permits  his  house  to  be  made  a 
nuisance  to  the  neighborhood  by  suffering  the  commission  of 
these  crimes  there,  whether  by  himself  or  others,  is  immate- 
rial. Surely  the  fact  that  he  himself  engages  in  the  commis- 
sion of  them  does  not  render  him  less  guilty,  nor  is  the  de- 
fendant punished  for  the  same  offence. 

He  may  be  punished  for  each  violation  of  the  liquor  law, 
and  also  for  keeping  a  resort  for  violators  of  the  law,  to  the 
detriment  of  the  public  morals. 

The  same  individuals  may  be  punished  for  a  riot  and  an 
assault  and  battery,  or  for  an  arson  or  murder  committed 
during  the  riot  by  one  of  the  rioters. 

In  directing  the  jury  upon  the  subject  of  the  responsibility 
of  landlords  for  the  houses  kept  by  their  lessees,  I  think  the 
learned  judge  went  too  far.  It  is  hardly  fair  to  say  that  a 
landlord  is  liable,  who  does  not  remonstrate  with  his  tenant 
about  the  disorder  of  his  house.  The  judge  says  the  ques- 
tion of  fact  is,  whether  the  house  has  thus  been  kept  by  the 


108          NEW  JERSEY  SUPREME  COURT. 

State  v.  Williams. 

procurement  or  with  the  knowledge  and  connivance  of  the 
owner.  If  it  has,  he  says  the  law  condemns  the  acquiescence, 
and  holds  the  owner  responsible. 

Again  he  says,  if  the  owner  or  landlord  uses  or  permits 
the  pro|»erty  to  be  used  without  objection  in  a  manner  inju- 
rious to  the  public,  whereby  it  becomes  a  nuisanoe,  he  must 
answer  for  it. 

It  would  seem  that  the  learned  judge's  language  is  fairly 
susceptible  of  the  meaning,  that  if  the  owner  who  has  leased 
a  house  for  a  year,  and  has,  by  the  terms  of  his  lease,  no 
control  over  the  tenant,  fails  to  go  to  the  tenant  and  object 
to  his  irregularities,  he  so  far  acquiesces  in  them  as  to  make 
himself  liable.  If  that  is  the  meaning,  I  cannot  agree  to  the 
doctrine. 

Mere  acquiescence  of  the  owner,  or  failure  to  object  when 
he  has  no  power  of  controlling  or  removing  the  tenant,  can- 
not make  him  liable.  It  may  be  otherwise  where  the  land- 
lord has  a  control,  and  he  fails  to  exercise  it,  although  that 
is  carrying  the  doctrine  of  aiding  and  abetting  to  a  great 
length. 

Thinking,  as  I  do,  that  the  verdict  was  found  upon  the 
ground  that  the  defendant  was  himself  in  this  house,  and  a 
habitual  violator  of  the  law  in  a  public  manner,  by  the  un- 
lawful sale  of  beer  on  Sundays,  I  think  there  should  be  judg- 
ment on  the  verdict. 

ELMER,  J.  Upon  the  trial  of  an  indictment,  in  the  usual 
form,  for  keeping  a  disorderly  house,  it  was  proved  that  the 
defendant  had  a  counter  in  t-he  room  occupied  by  him,  and 
beer  barrels,  and  that  he  sold  Ix-er  from  the  barrels  every 
Sunday  during  the  time  charged,  or  whenever  any  one  allied 
for  it.  After  the  jury  had  consulted,  they  desired  further 
instruction*  from  the  court,  and  asked,  "does  selling  beer  on 
Sunday*  constitute  a  disorderly  house?"  To  this  the  court 
answered,  ''it  does,  if  the  jury  In-Hove  that  he  made  a  prac- 
tice (o  do  80  whenever  he  had  customers."  This  charge 


JUNE  TERM,  1862.  109 


State  v.  Williams. 


being  objected  to  on  behalf  of  the  defendant,  the  opinion  of 
this  court  is  now  requested  as  to  its  correctness. 

That  selling  or  offering  to  sell  beer  on  Sunday  is  prohibited 
by  the  statute  and  indictable  is  not  disputed.  But  it  is  in- 
sisted that  each  specific  offence  must  be  indicted  under  the 
statute,  and  that  the  practice  of  violating  this  law  does  not 
constitute  a  disorderly  house,  unless,  besides  the  mere  fact 
of  selling,  it  shall  appear  that  disturbances  occur,  or  minors 
or  other  improper  persons  are  allowed  to  frequent  the  house. 
The  mere  repetition  of  unlawful  acts,  it  is  urged,  cannot  create 
a  nuisance,  and  that  the  effect  of  sustaining  this  charge  will 
be  that  a  person  may  be  twice  punished  for  the  .same  offence. 

A  house  to  which  people  promiscuously  resort  for  purposes 
injurious  to  the  public  morals  or  health,  or  convenience  or 
.safety,  is  a  nuisance,  and  the  keeper  is  liable  to  indictment  for 
keeping  a  disorderly  house.  That  bawdy  and  gaming  houses, 
and  houses  of  entertainment  resorted  to  by  prostitutes,  thieves, 
and  vagabonds  are  of  this  character  cannot  be  doubted. 

Gaming  is  not  of  itself  indictable  at  common  law,  but  the 
keeping  of  a  common  gaming  house  is.  Such  houses  have 
for  a  long  period  been  held  by  the  courts  to  be  necessarily 
injurious  to  public  morals,  and  therefore  indictable  as  nui- 
sances. Hawk,  b,  1,  c.  75,  §  6. 

The  legislation  of  this  state,  from  an  early  period,  has 
been  directed  to  the  object  of  preserving  to  its  citizens  a 
quiet  day  of  rest  and  worship  upon  one  day  out  of  the  seven, 
and  now  the  sale  of  spirituous  and  fermented  liquors  on  Sun- 
day is  absolutely  prohibited,  even  to  those  licensed  to  keep 
an  inn.  Conduct,  therefore,  which  may  be  allowable  on 
other  days,  if  permitted  on  Sunday,  may  make  a  house  dis- 
orderly ;  because  it  is  greatly  to  the  benefit  of  all  classes  of 
the  community,  and  especially  of  those  earning  their  bread 
by  daily  labor,  that  it  should  be  set  apart  for  quiet  repose 
and  religious  .observances.  I  entirely  concur  in  the  opinion 
of  Booth,  C.  ~J.,  Hall  v.  The  State,  4  Harr.  145,  that  the 
keeper  of  an  inn  or  tavern  (and  of  course  any  other  person) 
who  conducts  himself  in  such  manner,  either  in  the  euter- 

YOL.  i.  G 


110          NEW  JERSEY  SUPREME  COURT. 

State  v.  Williams. 

tainnit  lit  of  travellers  or  other  persons,  or  in  permitting  im- 
proper assemblages  in  or  about  his  house  on  Sunday  as  pro- 
fanes the  Lord's  day,  or  violates  public  order  and  decorum, 
or  shocks  the  religious  sense  or  feelings  of  the  neighborhood, 
is  guilty  of  a  nuisance  at  common  law. 

A  shopkeeper  or  other  person  may  sell  spirituous  liquor 
by  any  measure  not  less  than  a  quart,  but  it  is  no  part  of  his 
legitimate  business  to  permit  the  purchasers  to  remain  upon 
his  premises  while  they  drink  it;  and  if  he  is  in  the  habit  of 
doing  this,  so  as  to  allow  intoxicated  or  otherwise  disorderly 
persons  or  minors  to  remain  on  his  premises,  or  to  make  his 
premises  their  place  of  resort,  whereby  they  become  intoxi- 
cated, he  is  a  corruptor  of  the  public  morals,  and  endangers 
the  peace  of  the  community,  and  is  obnoxious  to  punishment 
as  the  keeper  of  a  disorderly  house.  The  same  effect  may 
l>e  produced,  and  the  same  consequences  may  follow  from  the 
practice  of  giving  away  intoxicating  liquor.  In  these  and 
similar  cases  it  is  not  the  illegal  sale  of  liquor  which  consti- 
tutes the  offence,  but  so  keeping  a  house  as  to  make  it  injuri- 
ous to  the  community,  and  therefore  a  nuisance.  But  I  think 
the  court  was  correct  in  charging  that  a  practice  of  so  keeping 
a  house  as  therein  to  violate  the  law  makes  it  disorderly.  It 
was  held,  I  think  in  entire  accordance  with  sound  principle  by 
the  Court  of  Appeals  of  Kentucky,  "  that  the  habitual  per- 
petration of  the  prohibited  offences  in  a  house  kept  for  the 
purpose  constitutes  the  house  a  public  nuisance,  as  it  tends 
in  a  greater  degree  to  the  spread  of  the  evil  which  was  in- 
tended to  be  prohibited."  6  H.  Hon.  21  ;*  12  R.  Man.  2.f  It 
is  remarked  by  Bishop,  in  commenting  on  these  cases,  as  it 
appears  to  me  correctly,  that  a  man  who  holds  out  induce- 
ments for  people  to  congregate  and  together  commit  violations 
of  a  statute,  not  only  lend*  the  concurrence  of  his  will  to 
their  wrongful  act*,  but  also  does  what  most  powerfully  tends 
to  injure  the  public  virtue;  or  if  he  thus  draws  j>eople  to- 
gether, that  in  their  presence  he  may  himself  infringe  a  law 
of  his  country,  he  accomplishes  the  same  evil  end.  2  Bisk. 
Ohm.  L.,  §  258. 

*SmitM  v.  Commonwealth.    tO»«»,'./.i/.,i///,  v.  M<  <•• 


JUNE  TERM,  1862.  Ill 

State  v.  Williams. 

That  the  defendant  may  also  be  indicted  for  each  specific 
act  of  selling  is  no  answer  to  this  charge.  The  offences  are 
not  the  same.  Nor  is  it  universally  true  that  a  man  cannot 
be  twice  punished  for  the  same  act.  The  same  act  may  be 
part  of  two  offences.  A  conspiracy  to  steal  and  the  larceny 
itself  may  be  indicted  and  punished  separately.  Rex  v.  But- 
ton, 11  Adol.  &  Ett.  N.  8.  929.  And  so  may  burglary  and 
the  act  of  stealing  which  shows  the  guilty  intent.  If  the 
act  is  indivisible,  as  for  instance  altering  and  selling  forged 
notes,  there  is  but  one  offence.  The  unlawful  selling  of 
]iquor,  which  may  take  place  in  or  out  of  a  house,  is  wholly 
•distinct  from  the  keeping  of  a  house  where  the  unlawful  pro- 
ceeding is  habitual.  The  seller  and  the  keeper  of  the  house 
may  be  the  same  person  or  wholly  different.  The  keepers  of 
bawdy  and  gaming  houses,  if  they  themselves  game  un- 
lawfully, or  commit  fornication  or  adultery,  may  be  punished 
for  each  of  those  offences,  and  also  for  maintaining  the  nui- 
sance. I  am  clearly  of  opinion  that  there  was  no  error  in 
this  part  of  the  charge. 

It  was  also  proven  in  this  case  that  the  defendant  owned 
several  contiguous  houses,  and  himself  occupied  parts  of  one, 
and  that  the  other  houses,  as  well  as  part  of  that. he  himself 
occupied,  were  possessed  by  his  tenants,  and  that  some  of  the 
tenants  had  been  guilty  of  fighting,  quarrelling,  and  misbe- 
having in  the  yard  and  in  the  street  in  front  of  the  houses,  to 
the  annoyance  and  disturbance  of  the  neighbors. 

The  court  submitted  the  question  to  the  jury  whether  the 
facts  in  evidence  made  the  defendant  responsible  for  the  mis- 
<jonduct  of  his  tenants?  This  part  of  the  charge  was  also 
excepted  to,  and  our  opinion  is  asked  as  to  its  correctness. 
Some  of  the  expressions  used,  if  unexplained  by  the  context, 
seem  to  be  doubtful,  as  for  instance  the  remark,  that  the 
rent  which  the  defendant  receives  or  agrees  for  is  sufficient 
to  show  the  benefit  he  received  from  the  manner  in  which 
the  house  has  been  maintained.  If  there  would  seem  to  be 
danger  that  the  jury  might  understand  this  as  intimating 
that  the  mere  receipt  of  rent  from  the  tenants  was  sufficient 


112          NEW  JERSEY  SUPREME  COURT. 


Mechanics  and  Traders  Bank  v.  Bridges  and  Boyle. 


it  would  be  erroneous.  But  it  is  very  evident,  I  tliink,  that 
this  was  not  the  ease.  The  explicit  language  of  the  charge 
is,  "  the  question  of  fact  is,  whether  the  house  has  been  thus 
kept  by  the  procurement  or  with  the  knowledge  and  concur- 
rence of  the  owner." 

That  the  letting  of  a  house,  with  a  knowledge  that  it  is 
intended  to  be  kept  in  a  disorderly  manner,  will  render  the 
landlord  indictable  as  a  principal  in  keeping  a  disorderly 
house,  was  expressly  and  correctly  decided  in  The  People  v. 
Encin,  4  Denio  129.  Such  guilty  knowledge,  I  think,  may 
in  general  be  fairly  inferred  from  proof  that  the  landlord, 
after  he  knew  that  his  tenant  was  in  the  habit  of  so  acting, 
renewed  the  lease,  and  made  no  real  effort  to  restrain  him. 
The  continual  receipt  of  rent,  and  a  persistence  in  enlarging 
the  term  of  a  disorderly  tenant,  who  earns  the  means  of  pay- 
ing the  rent  by  misconduct  visible  to  the  landlord,  may 
amount  to  very  satisfactory  evidence  that  he  did  in  fact  pro- 
cure and  sanction  the  disorderly  conduct.  This  was  the  sub- 
stance of  the  charge.  It  is  quite  apparent,  from  the  whole 
case,  that  the  verdict  of  the  jury  was  rightly  founded,  not  on 
the  misconduct  of  the  tenants,  but  on  the  personal  acts  of  the 
defendant.  1  am  therefore  of  opinion  that  the  Oyer  and  Ter- 
miner  should  l>e  advised  to  deny  a  new  trial. 

HAINES,  J.,  concurred. 

The  court  below  is  advised  to  render  judgment  on  the  verdict 

Cmn>  in  State  v.  Loveil,  10  Vroom  464 ;  Cuff,  Adm'x,  v.  Newark  and  Ne* 
York  R.JLOo^6  Vroom  27. 


THE  MECHANICS  AND  TRADERS  BANK  OF  JERSEY  CITY  v. 
BRIDGES  AND  BOYLE,  ASSESSORS,  ETC. 

BOGKKS  v.  THE  SAME. 

1.  Whether  a  general  law  repeals  any  of  the  provisions  of  a  special 
charter,  u  a  question  of  legislative  intention.  If  the  words  of  repeal 
are  so  strong  as  to  admit  of  no  doubt  aa  to  the  intention  to  repeal  they 
shall  take  effect. 


JUNE  TERM,  1862.  113 

Mechanics  and  Traders  Bank  v.  Bridges  and  Boyle. 

2.  Under  the  tax  law  of  1862,  a  resident  of  Jersey  City  is  liable  to  taxa- 
tion for  stocks  in  foreign  corporations  held  by  him. 

3.  The  tax  law  of  1862  repeals  so  much  of  the  charter  of  Jersey  City, 
passed  in  1851,  as  regulates  the  things  and  property  made  taxable, 
but  does  not  repeal  the  mode  of  levying  and  collecting  the  tax  by  the 
officers  appointed  under  the  charter  and  its  supplements. 


On  certiorari.     In  matter  of  taxation. 

The  assessments  in  the  above  stated  cases,  having  been 
made  under  the  act  of  March  28th,  1862,  entitled  "  a  further 
supplement  to  the  act  entitled  an  act  concerning  taxes," 
and  not  under  the  charter  of  the  city  and  its  supplements, 
were  removed  into  this  court,  and  sought  to  be  set  aside,  on 
the  ground  that  they  were  illegally  made,  and  that  the  pro- 
visions of  the  charter  in  regard  to  matters  of  taxation,  being 
special  and  local  in  their  character,  were  not  repealed  by  the 
general  law  of  1862. 

For  the  plaintiffs,  A.  0.  Zabriskie  and  J.  P.  Bradley. 

For  the  defendants,  F.  T.  Frelinghuysen,  Attorney  General. 

CHIEF  JUSTICE.  These  assessments  have  been  made  by 
•the  assessors  under  the  act  of  March  28th,  1862,  and  not  un- 
der the  charter  of  the  city  and  its  supplements.  Laws  of 
1851,  409,  act  of  24th  March,  1862. 

By  the  44th  section  of  the  charter,  the  subjects  of  taxation 
are  declared  to  be  real  estate  and  chattels,  at  their  true,  full, 
fair  value ;  nothing  else  is  taxable. 

The  taxes  are  to  be  assessed  by  two  assessors,  chosen  by  and 
acting  throughout  the  whole  city.  They  are  jointly  the  as- 
sessors of  each  ward  in  the  city. 

By  the  supplement  of  March  24th,  1862,  there  is  to  be 
appointed  by  the  common  council  a  collector  of  revenue, 
whose  duty  it^  is  to  collect  the  city,  county,  and  state  taxes ; 
the  county  and  state  taxes  are  to  be  paid  over  by  him  to  the 
county  collector,  in  like  manner  and  under  like  penalties  as 


114         NEW  JERSEY  SUPREME  COURT. 

Mechanics  and  Traders  Rink  v.  Bridges  and  Boyle. 

township  collectors  are  directed  by  law  to  pay.  By  the  act 
of  March  28th,  1862,  being  the  state  tax  law,  the  subjects  of 
taxation  are  entirely  different,  comprehending  a  large  amount 
of  personal  estate  not  included  in  the  term  chattels,  particu- 
larly specified  in  the  4th  section  of  the  act  of  1854,  (JVtz. 
Dig.  801)  from  which,  however,  are  to  be  excluded  stocks  of 
domestic  corporations.  Corporations,  also,  are  to  be  taxed 
at  the  amount  of  their  capital  stock  and  accumulated  surplus, 
after  deducting  the  value  of  their  lands  in  and  out  of  the 
state,  as  in  the  act  prescribed,  besides  other  kinds  of  taxation 
not  necessary  now  to  be  enumerated. 

By  the  act  of  1862,  two  separate  sums  are  directed  to  be 
assessed :  one,  by  the  first  section,  of  $100,000,  which  that 
sections  apportions  among  the  counties.  The  last  clause  de- 
clares that  said  tax  shall  be  levied  and  collected  in  the  man- 
ner directed  by  this  act,  and  the  act  to  which  this  is  a  sup- 
plement, that  is  the  act  of  1846.  The  second  section  levies 
a  tax  of  $450,000,  the  third  apportions  it  among  the  coun- 
ties, and  the  fifth  declares  that,  for  the  purpose  of  raising 
the  sums  required  to  be  raised  by  this  act,  and  the  sums  re- 
quired to  be  raised  for  county,  city,  township,  or  other  public 
taxes,  the  persons  and  property  herein  after  s|)ecified  shall 
be  assessed  and  taxed  as  lierein  after  provided.  That  part 
of  the  act  touching  the  mode  of  assessment  is  carelessly 
drawn.  It  could  not  have  been  the  intention  to  assess  the 
$100,000  and  the  §450,000  in  different  modes,  and  yet  the 
first,  if  a  literal  construction  be  adopted,  is  to  be  levied 
according  to  the  act  of  1846,  while  the  5th  section  directs 
the  sums  required  to  be  raised  by  this  act,  together  with  the 
other  Uixe*,  to  be  raised  as  in  the  act  provided.  This  in- 
cludes the  $100,000  as  well  as  the  $450,000.  If  the  last 
section  referred  to  relates  to  the  machinery  of  taxation,  the 
officer*  who  are  to  levy  and  <x>llect  the  tax,  as  well  as  the 
ratablrs  and  principles  of  taxation,  it  is  inconsistent  with 
the  requirement*  of  the  first  section.  If  a  subsequent  section, 
of  an  act  conflicts  with  a  prior,  it  so  far  supplants  it,  because 
it  is  the  lust  expression  of  the  legislative  will.  That  the 


JUNE  TERM,  1862.  115 

Mechanics  and  Traders  Bank  v.  Bridges  and  Boyle. 

5th  section  of  the  act  of  1862  refers  to  the  subjects  of  taxa- 
tion cannot  be  doubted.  The  words  as  "  herein  after  pro- 
vided "  are  equivalent  to  "  the  mode  herein  after  provided." 
The  subsequent  part  of  the  act  does  not  provide  in  detail  a 
complete  set  of  taxing  officers  and  collectors  of  taxes.  But 
by  further  defining  and  declaring  the  duties  of  such  officers 
it  recognizes  them  as  already  provided  by  law  for  the  dis- 
charge of  these  duties,  and  in  this  sense  provides  a  mode  of 
assessment  and  collection. 

But  although  this  view  of  the  case  is  plausible,  and  perhaps 
sound,  I  am  not  satisfied  to  put  the  decision  of  this  part  of 
the  case  upon  such  a  critical  exposition  of  the  statute,  but 
prefer  to  rest  upon  the  view  presently  to  be  expressed. 

It  is  insisted,  by  the  plaintiffs  in  eertiorari,  that  the  charter 
of  the  city  is  not  repealed  where  inconsistent  with  the  pro- 
visions of  the  act,  either  as  to  the  subjects  of  taxation  or  the 
mode  of  assessment  and  collection.  The  argument  is,  that 
the  provisions  of  a  special  charter  of  a  municipal  corpora- 
tion are  not  to  be  repealed  by  the  mere  general  words  of  an 
act  inconsistent  with  its  provisions ;  that  the  design  to  interfere 
with  and  repeal  the  chartered  right  must  expressly  appear 
on  the  face  of  the  act.  In  the  case  of  The  State  v.  Minturn, 
3  Zab.  529,  this  court  held  that  the  repealing  clause  in  the 
tax  law  of  1851,  repealing  all  acts  and  parts  of  acts  incon- 
sistent with  its  provisions,  did  not  repeal  the  clause  in  the 
charter  of  a  private  company  exempting  it  from  taxation, 
although  the  act  declared  that  all  lands  within  this  state, 
whether  owned  by  individuals  or  corporations,  should  be 
liable  to  taxation.  The  land  taxed  was  the  road  of  a  rail- 
road company. 

The  decision  was  put  upon  the  ground  that  it  could  not 
have  been  the  intention  to  take  away  the  immunities  of  a 
private  corporation  by  such  general  words. 

In  The  State  v.  Branin,  3  Zab.  497,  it  was  held  that  the 
charters  of  municipal  corporations  were  delegations  of  por- 
tions of  the  sovereign  power  to  the  body  corporate,  not  to  be 
taken  away  by  mere  general  words. 


116          NEW  JERSEY  SUPREME  COURT. 

MechanicH  and  Traders  Bank  v.  Bridges  and  Boyle. 

In  Gregorys  case,  6  Co.  20,  it  was  also  held  that  a  par- 
ticular statute  should  not  be  repealed  by  one  that  was 
general.  There  is  no  rule  of  law  forbidding  the  repeal  of 
the  provisions  of  a  municipal  charter,  except  by  supplement 
to  it. 

Whether  a  general  law  repeals  any  of  the  provisions  of  a 
special  charter,  is  a  question  of  legislative  intention.  If  the 
words  of  repeal  are  so  strong  as  to  admit  of  no  doubt  as  to 
the  intention  to  rejHial,  they  shall  take  effect.  The  words  of 
repeal  here  extend  not  only  to  general  laws,  but  to  all  acts, 
whether  special  or  local,  or  otherwise  inconsistent  with  the 
provisions  of  the  act.  The  charter  of  Jersey  City  is  both 
special  and  local,  and  so  far  as  it  is  inconsistent  with  the  act 
is  repealed.  The  act  cannot  be  interpreted  so  as  not  to  inter- 
fere with  the  provisions  of  city  charters,  or  upon  the  idea 
that  it  was  not  intended  to  do  so ;  for  instance,  the  22d  sec- 
tion expressly  regulates  the  fees  of  assessors  and  collectors 
in  assessing  and  collecting  city,  ward,  borough,  county,  and 
state  taxes;  other  sections  expressly  mention  ward  officers, 
and  define  their  duties. 

The  charter  may  be  inconsistent  with  the  act,  either  as  to 
the  mode  in  which  the  tax  shall  be  assessed  and  collected, 
that  is  the  mere  machinery  of  taxation,  or  else  in  the  subjects 
of  taxation  and  the  principle  of  assessing. 

If  the  taxes  are  to  be  levied  and  collected  in  cities  (Jersey 
City  for  example)  in  the  manner  described  by  the  act  of 
1846,  a*  the  first  section  declares,  it  cannot  be  done;  for  the 
machinery,  the  officers  to  do  it,  as  prescribed  by  that  act,  do 
not  there  exist ;  there  are  no  assessors  and  collectors  elected 
for  a  particular  ward.  In  view  of  the  great  practical  incon- 
venience that  will  follow  a  contrary  decision,  nullifying  as  it 
will  (in  all  citien  and  boroughs  which  have  jxruliar  officers 
and  modes  of  proceedings)  the  tax,  and  rendering  its  collec- 
tion ini|Mi— iL!r,  I  think  we  should  hold  Unit  part  of  the  first 
section  of  the  act  to  apply  only  where  no  other  machinery 
of  taxation  in  provided ;  that  it  declares  the  general  mode, 
in  the  abwnoc  of  a  particular  mode  provided  for  a  particular 


JUNE  TERM,  1862.  117 

Mechanics  and  Traders  Bank  v.  Bridges  and  Boyle. 

city.     The  charter  of  Jersey  City  is  not  in  that  respect  so 
inconsistent  with  the  act  of  1862  as  to  be  repealed  by  it. 

It  could  never  have  been  the  intention  of  the  legislature 
to  substitute  for  the  carefully  contrived  machinery  of  taxa- 
tion, specially  provided  for  the  cities  of  this  state,  the  utterly 
inapplicable  provisions  of  the  act  of  1846,  framed  with  a 
view  to  the  simple  wants  of  the  townships  into  which  the 
agricultural  part  of  the  state  is  divided. 

It  is  very  clear,  from  the  whole  structure  of  the  act,  that 
its  main  design  was  to  regulate  the  subjects  and  principles  of 
taxation,  not  the  machinery.  It  is  true  some  of  the  sections 
give  additional  powers  to  well-known  officers  to  make  the 
discovery  of  taxable  property  more  thorough.  But  that 
does  not  alter  the  general  character  of  the  act,  as  above 
stated.  So  far  as  these  provisions  are  applicable  to  the  mode 
of  taxation  adopted  in  cities,  they  must  be  used  ;  where  they 
cannot  be,  for  want  of  officers  to  which  they  can  apply,  the 
law  must  cease  to  operate  in  that  respect. 

My  conclusion  is,  that  the  subjects  of  taxation  and  prin- 
ciples of  assessment  to  be  used  in  Jersey  City,  for  their  local 
as  well  as  state  taxes,  are  to  be  regulated  by  the  act  of  1862. 
As  to  this,  I  see  no  escape  from  the  clear  well  weighed  words 
of  the  5th  section  of  the  act,  that  the  taxes  for  county,  city, 
township,  and  other  public  taxes  are  to  be  raised  on  the  per- 
sons and  property,  as  in  the  act  provided ;  but  that  the  act 
did  not  change  the  officers  constituting  the  machinery  of 
taxation,  as  provided  for  townships  by  the  act  of  1846,  or  by 
the  special  charters  of  cities  for  them. 

I  am  also  of  opinion,  for  the  reasons  stated  in  my  opinion 
in  the  case  of  the  Newark  City  Bank  and  Wallen*  decided  at 
this  term,  that  the  Mechanics  and  Traders  Bank  is  entitled 
to  have  the  value  of  its  real  estate  and  the  stocks  of  United 
States  and  New  Jersey,  held  by  it,  deducted  from  the  amount 
of  its  stock  paid  in,  and  that  Mr.  Rogers  is  liable  to  taxation 
for  the  stocks~in  foreign  corporations  held  by  him. 

As  to  the  main  point  argued  in  this  case,  I  am  of  opinion 
that  the  act  of  March  28th,  1862,  repeals  so  much  of  the 

*Ante,13. 


118          NEW  JERSEY  SUPREME  COURT. 


Mechanics  and  Traders  Bank  v.  Bridges  and  Boyle. 


charter  of  Jersey  City,  passed  in  1851,  as  regulates  the 
things  and  proj>erty  made  taxable,  hut  does  not  repeal  the 
mode  of  levying  and  collecting  the  tax  by  the  officers  ap- 
pointed under  the  charter  and  its  supplements. 

ELMER,  J.  The  important  and  difficult  question  in  these 
cases  is,  how  far  the  general  tux  law  of  1862  repeals  the  pro- 
visions of  the  charter  of  Jersey  City.  The  words  of  the 
repealing  clause  are  peculiarly  strong,  and  without  doubt 
were  made  so  for  a  purpose.  They  are,  "  all  other  acts  and 
parts  of  acts,  whether  sj>ecial  or  local  or  otherwise,  incon- 
sistent with  the  provisions  of  this  act,  be  and  the  same  are 
hereby  repealed." 

It  is  a  sound  principle  of  interpretation,  always  adhered 
to  by  this  court,  thai  general  words  of  repeal  will  not  l>e 
held  to  affect  a  special  charter.  But  the  power  of  the  legis- 
lature to  rej>eal  or  modify  a  municipal  charter,  so  far  as  the 
questions  now  involved  are  concerned,  has  not  been  and  can- 
not be  disputed.  Laws  on  general  subjects,  containing  words 
repealing  other  acts  inconsistent  therewith,  such  words  being 
in  fact  almost  always  mere  surplusage,  are  seldom  intended 
to  affect  special  provisions  on  kindred  subjects  contained  in 
charters ;  but  when  words  of  a  specific  nature  and  applica- 
tion are  used,  it  becomes  the  question  what  such  words  mean, 
or  in  other  words,  what  was  the  intention  of  the  legislature ; 
for  that  being  ascertained,  we  have  no  choice  but  to  give  it 
effect. 

The  charter  of  Jersey  City,  Ads  of  1851,  409,  contains 
g|>ecial  provisions,  that  after  deducting  the  poll-tax  of  two 
dollars,  appropriated  to  public  schools,  the  residue  of  the  tax 
to  be  raised  Khali  be  assessed  on  the  value  of  the  real  estate 
and  chattels  situate  in  the  city,  both  of  residents  and  non- 
residents. 

These  provisions  are  inconsistent  with  the  5th  and  subee- 
quent  sections  of  the  act  of  1802.  They  are  parts  of  a 
special  and  local  act,  and  are  therefore  in  terms  re|>ealed.  I 
cannot  escape  the  conclusion  that  the  new  act  meant  to  re- 


JUNE  TERM,  1862.  119 

Mechanics  and  Traders  Bank  v.  Bridges  and  Boyle. 

quire,  and  does  require,  the  money  "  to  be  raised  for  county, 
city,  township,  or  other  public  taxes,"  in  all  parts  of  the 
state,  to  be  assessed  upon  real  and  personal  property,  as 
therein  prescribed,  in  a  uniform  manner,  and  meant  to  repeal 
all  special  charters,  so  far  as  their  provisions  are  inconsistent 
with  that  object.  Could  we  see  that  manifest  injustice  would 
result  from  such  a  construction  of  the  special  words,  I  should 
hesitate  to  adopt  it.  But  no  injustice  can  be  fairly  predi- 
cated of  a  system  of  taxation  bearing  equally  on  all  parts  of 
the  state,  nor  can  I  perceive  that  even  material  inconvenience 
must  be  the  result.  It  is  indeed  highly  probable  that  the 
mode  of  taxation  prescribed  in  the  charter  of  Jersey  City  is 
wiser  and  better  than  that  prescribed  by  the  new  act,  but  this 
is  a  consideration  which  belongs  exclusively  to  the  legislature. 

Much  stress  was  laid  by  counsel  on  the  great  difficulty,  if 
not  impossibility,  of  assessing  and  collecting  the  taxes  in 
Jersey  City,  and  in  many  other  parts  of  the  state,  if  the 
local  laws  directing  the  time  and  manner  of  doing  so  are 
held  to  be  repealed.  The  local  acts,  however,  except  perhaps 
in  a  few  unimportant  particulars,  are  not,  as  to  these  matters, 
inconsistent  with  this  act  of  1862.  The  repeal  cannot  be  con- 
sidered as  extending  to  anything  not  plainly  inconsistent. 
The  closing  words  of  the  first  section,  which  direct  the  tax 
therein  mentioned  to  be  levied  and  collected  in  the  manner  di- 
rected by  this  act  and  the  act  to  which  this  is  a  supplement, 
would  seem  to  exclude  the  modes  of  proceeding  provided  for 
in  other  acts.  But  the  5th  section  directs  that  all  the  sums 
required  to  be  raised  by  the  act,  which  of  course  include  the 
particular  sum  mentioned  in  the  first  section,  shall  be  assessed 
and  taxed  as  therein  after  specified.  The  meaning  of  this 
last  provision  would  seem  to  be,  that  the  taxes  are  to  be  as- 
sessed and  collected  as  by  this  act  directed,  so  far  as  the  direc- 
tion extends,  but  in  all  other  particulars  the  assessment  and 
collection  are  to  be  in  pursuance  of  the  general  or  local  laws 
before  in  force.  If  these  two  sections  are  in  conflict,  the  last 
section  must  prevail. 

The  local  laws  therefore  not  plainly  inconsistent  with  some 


120          NEW  JERSEY  SUPREME  COURT. 

Tyler  v.  Lawson. 

explicit  provision  of  the  act  of   1862,  are  left  in  force,  and 
govern  the  time  and  mode  of  assessing  and  collecting. 

VREDENBURGH,  J.,  concurred. 

VAN  DYKE,  J.,  dissented. 

Assessment  confirmed. 

CmED  in  State  v.  Miller,  post  371 ;  State,  Taintor,  pros.,  v.  Mayor  and 
Council  of  Morristown,  4  Vroom  61 ;  State,  Gorum,  pros.,  v.  Mills,  Receiver,  5 
Vroom  180;  State  v.  Cojitmr's  of  R.  R.  Taxation,  8  Vroom  230;  Trustee*  of 
Public  Schools  v.  City  of  Trenton,  3  Stew.  677. 


JOHN   TYLER   v.    CHARLES   S.    LAWSON,    TREASURER   OF 
SALEM  CITY. 

In  an  action  for  a  penalty  for  the  violation  of  a  city  ordinance,  which  de- 
clares that  it  shall  not  be  lawful  for  any  person  to  burn  tan  in  propel- 
ling machinery,  or  for  any  other  purpose,  to  the  annoyance  and 
discomfort  of  any  person  or  persons  residing  in  his  or  their  vicinity  ; 
and  if  he  does,  and  shall  not  immediately  desist,  upon  the  request  of 
»ny  citizen  annoyed  thereby,  or  shall  be  guilty  of  any  subsequent  vio- 
lation of  such  ordinance,  he  shall  be  liable  to  a  fine,  &c.,  it  is  neces- 
sary to  allege  in  the  state  of  demand,  a  burning  after  a  request  to  de- 
sist and  the  names  of  the  persons  who  were  annoyed. 


In  debt.     Cfertiorart  to  the  mayor  of  Salem  city. 
For  plaintiff,  A.  Browning. 
For  defendant, . 

The  opinion  of  the  court  was  delivered  by 

VREDENBURGH,  J.  This  was  an  action  of  debt,  brought 
under  a  city  ordinance  by  La\VM»n,  as  city  treasurer,  against 
Tyler,  l>efore  the  mayor,  sitting  as  a  court  for  the  trial  of 
email  causes,  to  recover  four  penalties,  of  $5  each,  for  burn- 
ing tan  for  propelling  machinery  in  the  city  of  Salem.  The 
can--  was  tried  in  the  alwenee.  of  the  defendant,  and  judgment 
rendered  for  the  plaintiff. 

The  charter  (Pamph.  JMW*  1859,  112,  §  8,)  provides  that 
it  shall  be  lawful  for  the  common  council  to  pass  ordinances 


JUNE  TERM,  1862.  121 

Tyler  v.  Lawson. 

for  abating  or  removing  any  nuisance  in  any  street  or  wharf',, 
on  any  lot  or  lots  or  enclosure  or  other  place  in  said  city,  and 
such  other  by-laws  and  ordinances  for  the  peace,  good  order, 
and  prosperity  of  said  city  as  they  may  deem  expedient,  and 
to  enforce  the  observance  of  all  such  laws  by  exacting  penal- 
ties by  fine  not  exceeding  fifty  dollars. 

On  the  22d  March,  1859,  the  common  council  passed  an< 
ordinance  that  it  shall  not  be  lawful  for  any  person  to  burn 
tan  in  propelling  machinery,  or  for  any  other  purpose,  to  the 
annoyance  and  discomfort  of  any  person  or  persons  residing 
in  his  vicinity.  And  if  he  does,  and  shall  not  immediately 
desist  upon  the  request  of  any  citizen  annoyed  thereby,  or 
shall  be  guilty  of  any  subsequent  violation  of  this  ordi- 
nance, he  shall  be  liable  to  a  fine  of  five  dollars  for  eacli 
offence,  to  be  recovered  in  an  action  of  debt,  by  the  treasurer,, 
for  the  use  of  the  city. 

One  of  the  reasons  assigned  is,  that  the  state  of  demand  is 
illegal. 

The  state  of  demand  avers  that  the  council  passed  said 
ordinance  (setting  it  out  at  length) ;  that  the  defendant  did 
burn  tan  on  his  lot,  in  the  city  of  Salem,  on  the  13th,  17th, 
18th,  and  19th  days  of  May,  1860,  to  the  annoyance  of  certain 
persons  (not  naming  them)  residing  in  his  vicinity,  and  did 
not  and  would  not  desist,  although  often  requested  so  to  do- 
by  certain  citizens  annoyed  thereby  (not  naming  them),  and 
has  been  guilty  of  subsequent  violations  of  the  ordinances,  by 
means  whereof  four  penalties  have  been  incurred. 

There  are  several  fatal  defects  in  this  state  of  demand.  In. 
the  first  place,  the  act  made  penal  is  burning  after  the  request 
to  stop.  The  acts  charged  are  the  burning  first,  and  a  re- 
quest to  desist  afterwards. 

There  is  no  averment  of  any  burning  after  the  request  to 
desist. 

In  the  next  place,  no  persons  are  named  who  were  annoyed, 
nor  are  any  named  who  made  the  request  to  desist.  Now 
the  defendant  had  a  right  to  contest  several  matters  under 
this  ordinance,  which  he  could  not  do  unless  the  persona 


122          NEW  JERSEY  SUPREME  COURT. 

Tyler  v.  Lawson. 

annoyed  were  named.  He  had  a  right  to  show  that  the 
persons  complaining  were  not  annoyed ;  that  no  smell  issued 
from  his  premises,  or  that  if  there  did,  it  did  not  reach  the 
complainants,  or  that  it  was  not  annoying  to  them,  or  that 
the  persons  complaining  were  not  in  his  vicinity,  or  were 
without  the  limits  of  the  corporation,  or  that  no  request  had 
been  made  to  him  to  <1<  >Ut. 

How  was  it  possible  for  him  to  prove  any  of  these  things, 
unless  the  names  of  the  citizens  annoyed,  or  some  of  them, 
were  given  ? 

A  grand  jury  might  as  well  indict  a  man  for  murder  with- 
out saying  who  was  dead.  Without  expressing  any  opinion 
upon  the  other  questions  argued,  the  judgment  must  be  re- 
versed, 

Judgment  reversed. 

CITED  in  Sober  son  v.  OUy  of  LambertvilU,  9  Vroom  72. 


CASES  DETERMINED 


IN   THE 


SUPREME  COURT  OF  JUDICATURE 


OF  THE 


STATE  OF  NEW  JERSEY, 
AT  NOVEMBER  TERM,  1862. 


DENNIS  FAEEEL  v.  JAMES  COL  WELL  AND  MULFOED  CAVA- 

LIEE. 

1.  If  a  constable  seize  goods  as  the  property  of  A.,  upon  execution  against 
him,  which  were  in  fact  the  property  of  A.  and  B.,  and  sell  and  de- 
liver the  entire  property,  B.  may  maintain  trespass. 

2.  If  the  title  of  one  partner  to  a  moiety  of  partnership  chattels  be  bad 
as  against  an  execution  creditor,  and  the  title  of  the  firm  be  good  as 
to  the  other  moiety,  both  partners  may  maintain  a  joint  action  in 
trespass  againt  the  officer  seizing  and  selling  the  entire  property. 

3.  If  B.  and  C.  sue  in  trespass  for  taking  goods  in  which  C.  had  no 
property,  and  B.  owned  one-half,  and  no  notice  is  given  of  a  misjoin- 
der  pursuant  to  the  statute  (Nix.  Dig.  665,  $  129,)  B.  is  entitled  to  re- 
cover damages  to  half  the  value  of  the  property. 

4.  If  no  question  was  made  at  the  trial  in  regard  to  the  amount  of  dama- 
ges in  case  C.  was  not  proved  to  be  an  owner,  and  the  court  was  not 
asked  to  charge  on  the  point,  and  it  appears  that  damages  to  the  full 
value  were  given,  the  judgment  will  not  be  reversed. 

6.  Damages  for  taking  a  horse  may  be  what  he  was  worth  in  the  business 
in  which  he  was  employed  by  the  plaintiffs. 

<5.  An  innocent  purchaser  of  property,  who  has  bought  it  in  a  fair  bona 
fide  manner  at  a  fair  price,  cannot  be  deprived  of  it  because  the  object 
of  the  seller  was  to  defraud  his  creditors. — By  ELMER,  J. 


Error  to  Hudson  Circuit  Court. 

123 


124  NEW  JERSEY  SUPREME  COURT. 


Fnrrel  v.  Col  well. 


This  was  an  action  of  tresjw&s,  brought  by  Colwell  ami 
Cavalier,  the  plaintiffs  below,  against  Farrel,  for  selling  and 
delivering  possession  of  a  horse  and  harness  claimed  by  them. 
The  defendant  below,  Farrel,  justified  as  constable  under  a 
judgment  and  execution  against  one  Peter  Cavalier.  The 
horse  and  harness  had  formerly  belonged  to  Peter  Cavalier, 
and  constituted  a  part  of  his  stock  in  trade ;  he  sold  out  this 
stock  in  trade,  one  half  to  Mulford  Cavalier,  his  son,  and  the 
other  half  to  Colwell,  each  buying  separately,  but  carrying 
on  their  business  as  partners,  and  using  the  horse  and  har- 
ness as  partnership  property. 

For  the  plaintiff  in  error,  S.  B.  Ransom. 
For  the  defendant  in  error,  C.  H.  Wmfield. 

The  opinion  of  the  court  was  delivered  by  the 
CHIEF  JUSTICE.  Farrel  was  a  con.stahle,  and  had  an  exe- 
cution in  favor  of  Randall  and  Morreli  against  one  Peter 
Cavalier,  upon  which  he  sold  and  delivered  possession  of  a 
horse  and  harness  claimed  by  the  plaintiffs,  Colwell  and 
Calvalier,  as  purchasers  from  Peter  Cavalier.  The  latter 
had  been  engaged  in  the  kindling  wood  business,  and  the 
horse  and  harness  was  a  part  of  the  stock  in  trade.  He 
sold  out  this  stock,  one  half  to  Mulford  Cavalier,  his  son,  and 
the  other  to  Colwell ;  each  bought  separately,  and  they  car- 
ried on  the  business  ostensibly  as  partners.  The  plaintiffs 
in  execution,  creditors  of  Peter  Cavalier,  insisted,  on  the 
trial,  that  the  sale  of  the  goods  to  Mulford  Cavalier  was  void 
under  the  statute  of  fraud*,  as  intended  to  defeat  creditors, 
and  also  that  it  was  a  mere  pretence  that  Peter  Cavalier 
was  btill  the  owner  of  the  property.  It  was  admitted  that 
Colwell  was  a  b&na  fide  purchaser,  and  had  good  title  to  a 
tuoiety  of  the  property. 

Several  reasons  have  been  assigned  for  the  reversal  of  the 
judgment,  some  of  which  it  is  not  necessary  to  notice  to  de- 
termine the  case. 


NOVEMBEE  TERM,  1862.  125 

Farrel  v.  Colwell. 

Among  other  things,  the  court  charged  the  jury  that  if 
they  should  find  that  the  sale  of  the  half  interest  to  Mulford 
was  fraudulent  in  fact  as  to  creditors,  and  that  Peter's  inter- 
est in  the  property  was  liable  to  execution  against  his  father, 
yet  if  it  appeared  by  the  evidence  that  the  defendant  levied 
upon  and  took  the  entire  interest  in  the  horse  and  harness, 
and  sold  and  delivered  them  as  entireties  to  the  purchaser,  he 
was  a  trespasser,  because  he  violated  the  lawful  joint  posses- 
sion of  both  the  plaintiffs  in  the  property,  and  unlawfully 
deprived  Colwell  of  his  undivided  interest  in  the  chattels, 
and  his  possession  thereof. 

This  charge  is  said  to  be  erroneous,  because  upon  an  execu^- 
tion  against  one  partner  the  officer  may  seize  the  partnership 
property,  and  sell  the  partner's  interest  in  it  to  satisfy  his  un- 
divided debt,  and  deliver  possession  to  the  purchaser  without 
subjecting  himself  to  the  liabilities  of  a  trespasser. 

Without  discussing  this  vexed  question,  and  attempting  to 
define  to  what  extent  an  officer  may  go  in  executing  a  fi.  fa. 
upon  partnership  property  to  satisfy  the  debt  of  a  partner,  it 
is  sufficient  to  say  that  this  case  does  not  come  within  the 
reach  of  any  of  the  decisions  upon  this  point  exempting  the 
officer  from  liability. 

In  this  case  the  officer  sold  the  property  as  the  sole  prop- 
erty of  Peter  Cavalier,  and  delivered  possession  of  it  as  such. 
The  sale  was  not  only  in  defiance  of  the  right  of  Mulford 
Cavalier  but  of  Colwell.  There  was  a  conversion  of  the 
whole  chattels,  not  of  the  partner's  interest.  Having  sold  the 
whole,  and  professed  to  pass  title  to  the  whole  to  the  pur- 
chaser, the  officer  is  estopped  in  this  suit  from  saying  that  he 
did  not  sell  Col  well's  interest.  It  would  never  do  to  permit 
an  officer  to  sell  the  interest  of  all  the  partners,  not  as  such, 
but  ousting  that  interest  by  a  sale  of  the  chattels  as  the  prop- 
erty of  a  third  person,  and  when  sued  by  those  whose  rights 
he  had  destroyed  as  far  as  he  had  the  power,  to  turn  them 
out  of  court  by  saying,  I  had  a  right  to  sell  the  rights  of  one 
of  you  to  satisfy  his  individual  debt. 

It  is  no  answer  to  say  that  the  officer  could  sell  only  the 
VOL.  i.  H 


126          NE\V  JERSEY  SUPREME  COURT. 


Farrel  v.  Colwell. 


right  of  the  defendant  in  execution ;  that  he  could  not  change 
the  property  of  the  others.  That  is  so  in  every  trespass. 
The  property  is  not  changed  by  the  trespass,  unless  the  owner 
elects  to  consider  it  so  changed,  and  to  bring  his  action  for 
damages  instead  of  for  the  thing  itself. 

Nor  is  the  objection,  that  in  the  contingency  contemplated 
by  the  charge,  of  Mulford  Cavalier's  title  being  bad  as 
against  the  execution,  so  far  as  it  depended  on  the  bill  of 
sale,  that  the  action  could  not  be  maintained  by  both  against 
the  officer,  a  sound  objection. 

The  case  was  put  to  the  jury  without  objection,  upon  the 
ground  that  there  was  a  partnership  between  Mulford  Cava- 
lier and  Colwell;  if  that  was  so,  although  the  title  of  the 
firm  might  have  been  bad  to  the  half  of  the  horse  and  har- 
ness conveyed  by  the  bill  of  sale  to  Mulford  Cavalier,  yet  it 
was  conceded  to  l>e  good  to  the  other  half  by  reason  of  the 
sidmitted  bona  fides  of  Col  well's  purchase.  The  plaintiffs 
could  maintain  a  joint  action,  because  they  held  a  joint  inter- 
est, in  any  event,  in  the  moiety  of  the  horse  and  harness, 
even  if  the  bill  of  sale  of  the  other  moiety  was  fraudulent  as 
to  creditors. 

The  question  should  not  have  been  presented  as  a  bar  to 
the  joint  action  of  the  plaintiffs,  but  as  affecting  the  damages 
to  be  recovered  in  the  contemplated  contingency  of  the  mala 
fideB  of  the  sale  to  Mulford  Cavalier.  In  that  event,  if  Col- 
well had  notice  of  the  fraud,  Mulford  Cavalier's  moiety  never 
pa««ed  to  tin;  firm,  and  they  could  not  recover  the  whole 
value  of  the  chattels  sold  ;  nor  could  they  ret-over,  if  Colwell 
was  without  notice  of  the  fraud,  more  than  the  value  of  Mul- 
ford Cavalier's  interest  as  partner  in  the  chattels. 

The  question,  what  tin-  projicr  measure  of  damages  would 
be  in  that  view  of  the  ease,  d«K>>  not  seem  to  have  been  dis- 
tinctly presented  upon  the  trial.  The  jury  were  instructed, 
in  the  event  of  no  fraud  Ix-ing  made  out,  to  render  a  verdict 
for  the  wh-il'-  value  of  the  horse  ami  harness,  at  the  time 
they  were  taken,  to  the  owners  in  their  business  ;  but  al- 
though they  were  instructed  that  if  the  fraud  alleged  were 


NOVEMBER  TERM,  1862.  127 

Fan-el  v.  Colwell. 

made  out,  yet  the  plaintiffs  might  recover  because  of  the 
unlawful  disturbance  of  the  plaintiffs'  joint  possession,  and 
the  deprivation  by  Colwell  of  his  undivided  interest  in  the 
property ;  yet  they  were  not  told  to  give  in  that  case  only  the 
value  of  Col  well's  interest.  The  only  exception  touching  the 
measure  of  damages,  was  to  that  part  of  the  charge  in  which 
the  court  held  as  to  damages,  what  has  already  been  stated. 
The  omission  of  the  court  to  charge  further  upon  the  measure 
of  damages  was  manifestly  an  inadvertence,  which  would 
have  promptly  been  corrected  if  brought  to  its  notice  at  the 
time.  The  defendant  neglected  to  do  so.  Not  having  made 
the  point  at  the  trial,  he  cannot  have  the  advantage  of  it  here. 
The  rule  upon  this  subject  has  long  been  well  understood  and 
settled.  If  the  verdict  was  no  larger  in  consequence  of  this 
omission  of  the  court,  the  remedy,  if  anywhere,  was  in  the 
court  below  on  application  for  a  new  trial. 

It  was  insisted,  as  a  reason  for  reversal,  that  the  measure 
of  damages,  as  propounded  to  the  jury,  was  incorrect;  that 
it  should  not  have  been  the  value  of  the  horse  and  harness 
to  the  owners  in  their  business,  but  their  absolute  market 
value. 

This  was  not  a  case  for  vindictive  damages ;  the  defend- 
ant was  an  officer  serving  an  execution  for  a  plaintiff  who, 
so  far  as  appears,  was  honestly  asserting  what  he  believed  to 
be  his  rights;  but  notwithstanding,  the  defendants  were  enti- 
tled to  be  indemnified  by  the  verdict.  They  were  entitled  to 
have  the  value  of  the  horse  as  a  horse  to  be  used  in  their 
business,  and  fitted  for  that  use.  Perhaps  he  would  not  have 
been  worth  anything  as  a  fast  trotter  or  as  a  gentleman's 
carriage  horse,  because  not  adapted  to  the  work;  but  that 
would  not  depreciate  his  value  as  a  cart  horse,  for  which 
purpose  he  was  to  be  used.  The  language  of  the  charge 
may  not  have  been  as  explicit  as  it  might  have  been,  yet  if 
it  does  not  assert  any  illegal  proposition,  as  applied  to  the 
case,  we  cannot  reverse  the  judgment;  if  the  defendant  de- 
sired it  to  be  more  full  and  explicit,  he  should  have  required 


128          NEW  JERSEY  SUPREME  COURT. 

Parrel  v.  Colwell. 

an  additional  charge  upon  the  point  more  specific  in  its 
characters 

I  perceive  no  error  in  the  refusal  of  the  court  to  charge 
that  the  sale  to  Mulford  Cavalier  was  fraudulent  in  law. 
Nothing  in  the  case  called  for  such  a  charge.  The  terms  of  the 
sale  were  lawful,  if  not  fraudulent  in  fact ;  whether  they  were 
so  or  not  was  a  matter  of  fact  to  be  determined  by  the  jury. 

The  court  did  not  submit  to  the  jury  the  question,  whether 
a  partership  existed  between  Mulford  Cavalier  and  Colwell, 
and  charged  the  jury  that  there  was  such  partnership;  there 
was  no  exception  to  the  charge  upon  this  point,  and  for  that 
reason  no  error  cm  be  assigned  for  that  cause. 

ELMER,  J.  I  concur  in  the  opinion  of  the  Chief  Justice. 
It  may  be  proj>er,  also,  to  notice  two  other  questions  discussed 
on  this  argument.  The  judge  charged  the  jury  that  "It  is 
necessary,  for  setting  aside  a  sale  as  fraudulent  in  law  against 
creditors,  that  both  vendor  and  vendee  should  concur  and  unite 
in  the  collusive  device  and  contrivance  ;  and  whether  they  did 
so  in  this  case  is  a  question  of  fact  for  you  to  settle  upon  a 
view  of  the  whole  transaction,  there  being  no  substantial  evi- 
dence to  that  effect,  as  in  the  case  of  Arvis."  This  was  ob- 
jected to  a*  erroneous. 

That  an  innocent  purchaser  of  pro|>erty,  who  has  bought  it 
in  a  fair  and  bona  fide  manner  for  a  fair  price,  cannot  be  de- 
prived of  it  because  the  object  of  the  sale  was  to  defraud  his 
creditors,  is  clear.  The  statute  of  frauds  expressly  so  enacts. 
(Nix.  Dig.  329,  §  6.)*  Taking  into  view  other  parts  of  the 
charge,  I  think  this  was  its  purport,  and  it  must  have  been 
so  understood. 

If  it  aprx-ared  that  by  the  expression,  "there  being  no 
substantial  evidence"  of  a  collusive  device  and  contrivance, 
the  jury  must  have  understood  that  there  was  no  evidence 
in  the  case  which  would  justify  them  in  finding  the  sale  of 
half  the  property  to  one  of  the  plaintiffs  to  l>e  fraudulent  I 
think  it  would  have  l>een  erroneous,  for  there  certainly  was 

•Rev.,  p.  447,  {  16. 


NOVEMBER  TERM,  1862.  129 


Farrell  v.  Colwell. 


evidence  which  might  have  convinced  the  jury  there  was  fraud 
in  fact.  But  this  could  not  have  been  so  understood.  In  a 
previous  part  of  the  charge,  the  jury  were  told,  "  If  the  ob- 
ject of  the  vendor  in  making  the  sale  was  to  defeat  the 
claims  of  any  creditors,  and  the  object  of  purchasing  was  to 
enable  the  father  of  one  of  them  to  accomplish  such  purpose, 
then  it  was  a  sale  to  hinder,  delay,  and  defraud  creditors,  and 
comes  within  the  decision  of  the  case  of  Owen  v.  Arvis,  cited 
by  the  defendants'  counsel."  In  disposing  of  the  facts  with 
reference  to  this  aspect  of  the  case,  you  should  bear  in  mind 
that  Colwell  heretofore  had  been  a  stranger  to  the  vendor  and 
his  son,  and  that  he  paid  cash  for  his  interest,  and  that  the 
other  plaintiff  has  testified  that  when  he  purchased  he  did  not 
know  whether  his  father  was  in  debt. 

There  can  be  no  doubt,  I  think,  that  the  question  of  fraud 
was  submitted  to  the  jury,  and  that  they  understood  the 
phrase,  "  no  substantial  evidence  to  that  effect  as  in  the  case 
of  Arvis,"  to  mean,  what  was  evidently  intended,  that  the 
transaction  was  not  in  law  such  a  fraud  as  made  the  sale  void, 
however  innocent  the  parties  may  have  been,  as  was  held  to 
be  the  case  in  Owen  v.  Arvis,  2  Dutcher  23. 

The  damages  assessed  would  seem  to  have  been  for  the 
whole  value  of  the  property  taken,  and  upon  the  supposition 
that  the  sale  of  one-half  to  Mnlford  Cavalier  was  fraudulent 
and  void.  I  think  this  would  have  been  erroneous.  In  that 
case  the  other  plaintiff,  had  he  sued  alone,  and  there  was  no 
plea  in  abatement,  could  only  have  recovered  one-half  the 
value.  Bloxam  v.  Hubbard,  5  East's  R.  407  ;  Addison  v.  Over- 
end,  6  Term  K  766 ;  Sedgworth  v.  Overend,  7  Term  R.  279. 

By  the  statute  (Nix.  Dig.  665,  §  129,)*  it  is  provided  that 
the  misjoinder  of  a  plaintiff  shall  not  be  objected  to,  unless 
the  defendant  give  previous  written  notice  of  such  objection. 
This  provision,  I  suppose,  entitled  the  plaintiffs  to  such  a  ver- 
dict and  judgment  as  either  of  them  might  have  had  if  he 
had  sued  separately. 

But  no  question  as  to  what  damages  should  be  given  if 

*Eev.,  p.  853  \  37. 


130          NEW  JERSEY  SUPREME  COURT. 


Farrel  v.  Colwell. 


the  sale  to  one  was  found  to  be  fraudulent  appears  to  have 
been  made  at  the  trial.  The  judge  was  not  asked  to  charge 
as  to  this  point,  nor  is  there  any  error  assigned  upon  it. 

VREDENBURGH,  J.,  (dissenting.)  This  was  an  action  of 
trespass,  brought  by  Colwell  and  Cavalier  against  Farrell  for 
taking  and  selling  a  horse  and  harness.  The  defendant  be- 
low, Parrel,  justified  as  constable  under  a  judgment  and  exe- 
cution against  one  Peter  Cavalier.  The  principal  question 
was  whether  a  sale  of  the  articles  by  Peter  Cavalier  to  the 
plaintiffs  was  fraudulent  as  against  creditors. 

It  appears  by  the  case,  that  Peter  Cavalier  became  indebted, 
to  Randall  and  Morrell  a  short  time  prior  to  the  19th  March, 
1860;  they  obtained  judgment  against  him  the  llth  July, 
1860.  Peter  Cavalier  sold  the  property,  together  with  a 
large  amount  of  other  property,  to  the  plaintiffs  below.  The 
question  turned  nj>on  the  bona  Jules  of  the  sale  by  Peter  Cav- 
alier as  regards  creditors.  The  court,  among  other  things, 
charged  the  jury  that  it  is  necessary,  for  setting  aside  a  sale 
as  fraudulent  in  law  that  both  vendor  and  vendee  .should  con- 
cur and  unite  in  the  collusive  device  and  contrivance;  and 
whether  they  did  so  in  this  case,  is  a  question  of  fact  for  you 
to  settle  upon  a  view  of  the  whole  transaction,  there  being  no 
substantial  evidence  to  that  effect,  as  in  the  case  of  Arvis. 

It  appears  to  me  that  this  amounts  in  legal  effect  to  saying 
to  the  jury  that  there  was  no  evidence  of  fraud. 

Now  it  appears,  by  the  evidence,  that  Peter  Cavalier  had 
been,  and  was,  on  the  19th  March,  1860,  carrying  on,  in 
Jeivey  City,  the  business  of  making  and  selling  kindling 
wood  and  charcoal,  ami  hrid  three  horses  and  sets  of  harness, 
three  wagons,  one  steam  engine,  l>oilcr,  and  fixtures,  one  kin- 
dling wood  machine,  a  lot  of  pine  wood,  lot  of  cut  wood,  lot 
of  tools,  one  sawing  machine,  and  divers  other  projjerty,  of 
the  value  of  $2000,  and  being  in  debt,  on  the  19th  March, 
1860,  by  two  separate  bills  of  sale,  for  the  nominal  sum  of 
$1545.52,  conveyed  one  half  of  all  his  property  to  each  of  the 
plaintiff- ;  that  Colwell  paid  his  one  half  in  money;  that  Mill- 


NOVEMBER  TERM,  1862.  131 


Staats  v.  Bergen. 


ford  Cavalier  was  the  son  of  Peter  Cavalier,  had  just  come  of 
age,  had  no  money  to  buy  with,  and  gave  his  note  to  his  father 
for  the  consideration  ($772.76)  of  the  bill  of  sale  to  him  pay- 
able at  a  future  time ;  that  both  bills  of  sale  were  given  at  the 
same  time,  and  that  Colwell  stood  by  and  saw  young  Cavalier 
give  his  note  for  the  whole  purchase  money.  It  appears  to 
me  that  this  is  some  evidence  of  fraud  on  the  part  of  both 
plaintiffs  which  should  have  gone  to  the  jury. 

I  am  of  opinion  that  the  judgment  should  be  reversed. 

Judgment  affirmed. 


ABEAHAM  J.  STAATS  v.  ZACCHEUS  BEEGEN. 

A  declaration  alleged,  that  whereas  the  defendant,  by  a  certain  bond, 
did  recite  that  he  held  a  bond  and  mortgage  given  by  J.  A.  S.  to  him 
as  trustee,  to  be  appropriated  by  the  defendant  to  the  support  of  one 
M.  S.  during  her  life,  and  to  pay  the  residue  that  might  remain  in  his 
hands  to  the  plaintiff. 

Held  that  a  plea  averring  that  the  land  covered  by  the  mortgage  has 
been  sold,  and  all  its  proceeds  absorbed  by  prior  encumbrances,  was  a 
good  defence. 

In  debt.     On  demurrer  to  declaration. 

Argued  at  June  term,  1862,  before  the  Chief  Justice,  and 
Justices  VREDENBTJRGH  and  VAN  DYKE. 

For  the  plaintiff,  8.  B.  Ransom. 
For  the  defendant,  J.  W.  DiUs. 

CHIEF  JUSTICE.  The  question  raised  by  this  demurrer  is, 
whether  the  defendant  is  absolutely  bound  by  the  bond  which 
he  executed  as  trustee  to  pay  the  amount  mentioned  in  a 
bond  and  mortgage,  assigned  to  him  as  such  trustee,  at  all 
events,  or  only  such  moneys  as  he  might  receive  and  collect 
thereon  without  default  on  his  part. 

The  condition  of  the  bond  recited  that  the  defendant  held 
a  bond  and  mortgage,  given  by  John  A.  Staats  and  Anne  his 


132          NEW  JERSEY  SUPREME  CXHJRT. 

Staats  v.  Bergen. 

wife  on  a  farm  iu  Bridgewater  township,  Somerset  county, 
to  secure  the  sum  of  $333.33,  with  interest,  as  trustee,  to  be 
appropriated  by  the  defendant  to  the  support  of  one  Mary 
Stoats,  as  far  as  might  be  necessary  during  her  natural  life, 
and  to  the  payment  of  her  funeral  expenses,  and  to  pay  the 
residue  that  might  remain  in  his  hands  to  James  B.  Staats, 
his  heirs  or  aligns. 

The  declaration  does  not  aver  that  he  ever  received  or 
might  have  received  the  money  on  the  bond  and  mortgage, 
or  any  part  of  it,  and  avers  the  death  of  Man'  Staats  soon 
after,  before  any  part  of  the  money  had  been  appropriated 
for  her,  and  the  nonpayment  of  money  to  the  assignee  of 
James  B.  Staats. 

The  plea  demurred  to  alleges  the  appropriation  of  the 
money,  so  far  as  was  necessary,  for  Mary  Staats ;  that  after 
her  death  there  was  no  residue  of  the  money  mentioned  in 
the  mortgage  as  remaining  in  the  defendant's  hands,  all  that 
had  been"  or  could  be  collected  having  been  appropriated  for 
Mary  Staats'  use  or  her  funeral  expenses;  and  that  the  de- 
fendant had  not,  and  never  had  any  residue  of  the  moneys 
secured  by  the  bond  remaining  in  his  hands. 

U|>on  the  pleadings,  it  is  admitted  that  all  that  had  been 
or  could  be  collet! ted  on  the  bond  and  mortgage  had  been 
appropriated  to  the  support  of  Mary  Staats  and  to  the  pay- 
ment of  her  funeral  expenses;  and  that  the  defendant  had 
not,  and  never  had  any  residue  of  the  moneys  secured  by  the 
bond  in  his  hands. 

The  bond  binds  defendant,  in  substance  and  effect,  to  ap- 
propriate a  lx>nd  and  mortgage,  held  by  him  as  trustee,  to 
the  supjM>rt  and  funeral  CXJKMISCS  of  Mary  Staats,  and  to  pay 
the  residue  that  might  remain  in  his  hands  to  James  B. 
Stnat*,  his  heirs  nnd  assign*. 

It  in  not  a  Iwnd  to  appropriate  the  sum  of  $333.33  in  con- 
sideration of  his  holding  the  l*>nd  and  mortgage  as  trustee, 
but  to  appropriate  the.  bond  and  mortgage:  that  could  not  l>e 
done  tinlcm  it  was  collected  and  r< -reived  ;  he  held  the  bond 
and  mortgage  an  trustee,  not  the  money.  If  the  bond  and 


NOVEMBER  TERM,  1862.  133 

Staats  v.  Bergen. 

mortgage  was  valueless,  his  agreement  was  impossible  of  per- 
formance, and  he  was  excused. 

There  is  an  implied  covenant  to  collect  the  money,  if  pos- 
sible, on  the  bond  and  mortgage,  and  apply  it  to  the  purposes 
of  the  trust.  That  is  implied  by  the  word  appropriate. 

As  it  appears  by  the  record  that  the  money  was  never  col- 
lected, and  never  could  be,  and  that  without  any  default  of 
the  trustee,  there  must  be  judgment  for  the  defendant. 

VREDENBURGH,  J.  This  was  an  action  of  debt.  The  dec- 
laration alleges,  that  whereas  the  defendant,  on  the  31st  of 
October,  1860,  by  a  certain  bond,  did  recite  and  witness  that 
he  held  a  bond  and  mortgage,  given  by  John  A.  Staats,  on  a 
farm  in  Bridgewater,  to  secure  the  sum  of  |333.33,  with  in- 
terest thereon,  as  trustee,  to  be  appropriated  by  the  defendant 
to  the  support  of  one  Mary  Staats,  so  far  as  it  might  be 
necessary  during  her  natural  life,  and  to  the  payment  of  her 
funeral  expenses,  and  that  he,  the  defendant,  by  the  said 
Ixmd,  promised  to  pay  the  residue  that  might  remain  in  his 
hands  to  the  plaintiff  within  one  year  after  the  decease  of 
said  Mary,  and  avers  that  Mary  Staats  died  on  14th  Febru- 
ary, 1861,  before  the  said  defendant  had  expended  any  part 
of  the  $333.33  for  the  support  of  the  said  Mary. 

To  this  the  defendant  has  pleaded,  in  substance,  that  before 
this  suit  was  brought  the  premises  on  which  the  mortgage 
was,  had  been  sold  by  prior  encumbrancers,  and  did  not  bring 
enough  to  pay  them  off,  and  that  he  has  realized  nothing,  and 
can  realize  nothing  from  said  bond  and  mortgage. 

To  this  the  plaintiff  has  demurred.  Whenever  there  is  a 
demurrer  to  a  plea,  we  may  inquire  if  the  declaration  dis- 
closes a  legal  cause  of  action.  In  this  case  I  think  it  does 
not.  It  merely  shows  that  the  defendant  held  a  bond  and 
mortgage  upon  certain  trusts.  There  is  nothing  to  show 
that  he  intended  to  make  himself  personally  liable  for  the 
amount  of  money  secured  by  the  mortgage,  but  only  that  he 
would  perform  the  trusts ;  that  he  would  appropriate  so 
much  of  the  mortgage  as  he  should  receive  or  realize — first, 


134          NEW  JERSEY  SUPREME  COURT. 

Staats  v.  Bergen. 

for  the  support  of  Mary  Staate ;  second,  to  pay  the  expenses 
of  her  funeral ;  and  third,  pay  over  the  balance  he  should 
realize  to  the  plaintiff. 

The  language  of  the  bond  is  "  pay  the  residue  that  might 
remain  in  his  hands  to  the  plaintiff,"  not  pay  the  whole 
money  scoured  by  the  mortgage,  but  the  residue  that  might 
remain  in  his  hands.  If  none  could  be  collected  on  the 
mortgage  nothing  remained.  In  order  to  have  made  the  dec- 
laration good,  it  should  have  averred  that  the  defendant  had 
either  collected  the  money  on  the  lx>nd  and  mortgage,  or  by 
due  diligence  might  have  collected  the  same. 

But  whether  the  declaration  be  good  or  not,  the  plea  and 
the  notice  clearly  raise  a  good  defence.  It  is  not  the  inten- 
tion of  the  instrument  that  the  defendant  should  be  abso- 
lutely liable  for  the  money  secured  by  the  bond  and  mort- 
gage- 

The  demurrer  should  be  overruled. 

VAN  DYKE,  J.  I  do  not  think  the  plea  demurred  to  in? 
this  case  is  double,  within  the  legal  meaning  of  that  term, 
to  the  extent  of  making  it  bad.  The  latter  part  of  the  plea, 
which  is  supposed  to  give  it  a  double  aspect,  does  not  raise 
any  new  matter,  but  is  a  kind  of  repetition  of  what  is  before 
stated.  The  plea  is  good,  I  think,  without  it,  and  it  may  be 
rejected  as  surplusage. 

The  plea  avers  that,  before  the  commencement  of  the  suit, 
the  defendant  had  appropriated  all  the  money  that  had  been, 
or  that  could  have  l>een,  or  that  ran  l>e  collrcted  on  the  lx>nd 
and  mortgage  referred  to,  to  the  support  of  the  said  Mary 
Staata  and  to  the  payment  of  her  funeral  expenses.  If  he 
did  this,  I  think  it  should  o|>cratc  as  a  defence  to  this  suit. 

The  defendant  held  these  papers  as  a  mere  trustee,  and 
the  paper  on  which  the  action  is  brought  is  but  a  declaration 
of  trust  showing  how  the  moneys  supposed  to  be  secured  by 
the  bond  and  mortgage  were  to  be  used  and  paid  by  him ; 
and  although  the  language  of  the  latter  clause  of  that  in- 
strument is  strong,  binding  himself  by  an  express  promise 


NOVEMBER  TEEM,  1862.  135 

Jones  v.  Vail. 

to  pay  to  the  plaintiff  and  his  heirs  and  assigns  all  of  the 
residue  which  should  remain  in  his  hands,  yet  it  will  be  ob- 
served that  this  strong  language  only  applies  to  such  residue 
as  should  remain  in  his  hands,  that  is  such  residue  as  he  had 
or  might  have  collected ;  but  if  he  has  appropriated  all  the 
money  that  he  could  by  possibility  have  collected  on  the  bond 
and  mortgage  to  the  support  of  his  cestui  que  trust  and  tc- 
her  funeral  expenses,  so  that  there  cannot  be  and  could  not 
have  been  any  residue  in  his  hands  at  any  time,  he  ha& 
fully  discharged  the  duties  of  his  trust,  and  can  no  longer  be 
held  responsible.  As  a  mere  trustee,  it  cannot  be  supposed 
that  he  was  to  pay  over  any  money  to  any  party  that  he  never 
received,  and  which  no  effort  of  his  could  have  enabled  him 
to  collect. 

I  think,  therefore,  the  plea  is  good,  and  the  demurrer  should 
be  overruled. 

Judgment  for  defendant. 


SAMUEL  JONES  v.  STEPHEN  VAIL. 

New  trial  applied  for  on  the  ground  that  a  witness  for  the  defendant  made 
statements  in  the  hearing  of  some  of  the  jury  which  might  have  in- 
fluenced the  verdict,  but  refused,  as  it  appears  that  there  was  no  evil 
intention,  that  the  defendant  had  no  concern  in  the  transaction  and 
that  the  verdict  was  satisfactory  to  the  court. 


This  was  an  action  of  assumpsit,  tried  before  Mr.  Justice 
BROWN  at  the  Morris  Circuit  Court.  A  verdict  having  been 
rendered  for  the  defendant,  a  rule  to  show  cause  why  there 
should  not  be  a  new  trial  was  allowed,  which  was  argued  at 
June  term,  1862,  by  Theodore  Little,  for  the  plaintiff,  and 
Vanatta,  for  defendant,  before  Justices  HAINES,  VAN  DYKE, 
and  ELMER.  The  CHIEF  JUSTICE,  having  been  counsel  in 
the  case,  did  not  sit. 


136          NEW  JERSEY  SUPREME  COURT. 

Jones  v.  Vail. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  The  first  ground  relied  upon  for  a  new  trial 
was  that  the  verdict  was  against  the  weight  of  evidence.  A 
careful  examination  of  the  evidence  has  satisfied  me  that  the 
verdict  was  correct.  It  may  be  added  that  it  was  satisfactory 
to  the  judge  who  tried  the  case,  and  that  the  rule  to  show 
cause  was  not  allowed  because  of  any  doubt  on  this  ques- 
tion. 

The  second  reason  urged,  namely,  that  the  jury  was  im- 
properly influenced  by  the  conversation  of  a  person  acting  as 
the  agent  of  the  defendant,  or  intimately  connected  with 
him,  presents  a  question  of  more  difficulty.  Was  it  fully 
6U|>|K>rted  by  the  de|x>sitions  produced  to  prove  it,  or  was 
there  reason  to  susi>ect  that  what  took  place  was  in  any  way 
produced,  or  even  connived  at,  by  the  party  in  whose  fnvor 
the  verdict  was  rendered,  there  could  be  no  hesitation  in  sub- 
mitting the  case  to  the  decision  of  another  jury.  The  duty 
of  guarding  trials  by  jury  from  all  improper  influences  is 
too  ini|x>rtant  to  allow  us  to  overlook  any  attempt  to  interfere 
witli  them. 

It  appears  that  a  prominent  witness  for  the  defendant, 
who  had  been  selected  as  an  assignee,  and  thus  Ix'came  con- 
nected with  some  of  the  transactions  drawn  in  question,  en- 
tered into  conversation  with  a  friend,  on  the  piazza  of  the 
hotel,  during  the  progress  of  the  trial,  and  made  some  state- 
ments which,  if  heard  and  understood  by  the  jury,  might 
have  influenced  their  decision.  Two  of  the  jurors  were  pres- 
ent, and  heard,  or  might  have  heard,  more  or  less  of  this 
conversation.  It  satisfactorily  appears,  however,  that  it  was 
an  accidental  conversation,  and  that  there  was  no  design  to 
influence  the  decision  of  the  jury;  and  it  is  quite  uncertain 
whether  either  of  the  jurymen  present  heard  enough  to  pro- 
dtu-e  any  effect.  There  is  no  reason  to  gnspect,  that  the  de- 
fendant had  the  slightest  participation  in  the  occurrence, 
directly  or  indirectly,  and  what  is  perhaps  more  important, 
then-  was  no  evil  rcxtilt,  the  verdict  actually  rendered  l>eing 
warranted  by  the  evidence.  No  improjM-r  conduct  is  irnput- 


NOVEMBER  TERM,  1862.  137 

State  v.  Hudson  County. 

able  to  any  of  the  jurymen.  Had  the  verdict  been  of  even 
doubtful  propriety,  it  might  be  proper  to  interfere,  even  at 
the  risk  of  occasioning  great  hardship  to  an  innocent  party  ;. 
but  as  the  case  is  presented,  I  think  the  verdict  should  standy 
and  the  rule  to  show  cause  be  discharged. 

Rule  discharged. 


THE  STATE  v.  INHABITANTS  OF  THE  COUNTY  OF  HUDSON. 

1.  The  inhabitants  of  counties  were  not  indictable  at  common  law  for 
not  repairing  bridges  over  canals,  but  only  bridges  over  rivers. 

2.  The  inhabitants  of  counties  in  this  state  are  not  indictable  for  not  re- 
pairing bridges  over  rivers  in  this  state. 


On  certiorari  and  motion  to  quash  indictment. 

In  1862,  at  the  Court  of  Oyer  and  Terminer  in  and  for 
the  county  of  Hudson,  a  bill  of  indictment  was  found  against 
the  inhabitants  of  the  county  for  not  repairing  a  certain  com- 
mon and  public  bridge  over  the  Morris  canal,  in  said  county, 
being  a  common  highway,  which  had  become  dangerous  to 
pass,  and  which  the  county  was  bound  to  repair. 

The  indictment  having  been  removed  into  this  court  by 
certiorari,  a  motion  was  made  to  quash  it,  on  the  ground 
that  it  set  forth  no  indictable  offence. 

The  motion  was  argued  by  A.  0.  Zabriskie,  for  plaintiff  in 
certiorari,  I.  W.  Scudder,  for  the  State. 

The  opinion  of  the  court  was  delivered  by 

YEEDENBUEGH,  J.  The  defendants  move  to  quash  this 
indictment,  on  the  ground  that  in  New  Jersey  the  inhab- 
itants of  a  county  are  not  liable  to  indictment  for  not  re- 
pairing bridges.  The  indictment  avers  that,  from  the  1st 
January,  1861,  there  was  and  is  a  certain  common  and 


138          NEW  JERSEY  SUPREME  COURT. 


State  v.  Hudson  County. 


public  bridge  over  the  Morris  canal,  in  said  county,  being 
a  common  highway,  which  bridge  is  and  was  broken  and 
dangerous  for  want  of  necessary  repairs,  so  that  the  citizens 
cannot  pass  without  danger,  and  that  the  inhabitants  of  the 
county  have  been  and  still  of  right  are  bound  to  repair  it,  to 
the  common  nuisance  of  said  citizens. 

The  defendants  now  move  to  quash  this  indictment,  upon 
the  ground  that  the  inhabitants  of  the  county  are  not  bound 
to  repair  it. 

This  leads  to  the  following  inquiries  : 

1st.  Were  the  inhabitants  of  a  county,  at  common  law, 
bound  to  repair  public  bridges? 

2d.  If  they  were,  was  that  common  law  adopted  in  this 
state? 

3d.  If  it  was  not,  has  any  such  liability  been  created  by 
our  statutes  ? 

Were  the  inhabitants  of  counties  in  England,  by  their 
common  law,  liable  to  repair  public  bridges? 

This  is  too  well  settled  by  authority  and  the  judicial  his- 
tory of  England  to  be  questioned.  Indeed,  I  do  not  under- 
stand it,  on  this  motion,  to  have  been  seriously  contested. 

The  authorities  upon  this  subject  are  abundant.  2  Insti- 
tute* 700,  701  ;  Qi-oke  Charles  365  ;  Langforth  bridge  case, 
2  East  342,  356  ;  5  Burrows  2594.  So  ancient  in  this  doc- 
trine, that  the  statute  of  22  Henry  VIII.,  recognizing  the 
principle,  has  always  been  held  as  but  declaratory  of  the 
common  law.  It  was  evidently  originated  in  times  of  much 
higher  antiquity. 

2d.  Was  this  principle  of  the  common  law  adopted  in  this 
state?  The  body  of  the  common  law,  so  far  as  it  was 
adapted  to  our  circumstance*,  undoubtedly  was.  But  an 
examination  of  the  early  legislation  of  this  colony  will  show, 
I  think,  that  the  principle  now  in  question  was  an  exception 
to  the  general  rule.  The  first  act  relating  to  the  subject 
was  passed  by  East  Jersey  in  1682,  Learn.  &  Spicer,  page 
257,  which  provided  that  in  and  through  the  province  all 
necessary  highways,  bridges,  <fec.,  from  and  after  1682,  for 


NOVEMBER  TERM,  1862.  139 

State  v.  Hudson  County. 

travelling,  shall  be  laid  out  through  every  county  by  certain 
persons  (naming  them),  and  that  the  said  highways  and 
bridges  are  and  shall  be  accounted  to  belong  to  the  said  re- 
spective county,  and  shall  be  made,  maintained,  repaired, 
and  kept  up  at  the  charge  of  every  respective  person,  town, 
or  township  to  whom  or  where  they  are  most  serviceable  or 
do  or  shall  most  immediately  belong  or  appertain.  In  1686, 
the  legislature  of  East  Jersey  appointed  other  persons  to 
supply  the  place  of  those  who  in  the  meantime  had  died.  In 
the  same  year,  1686,  another  act  was  passed,  Learn.  &  Spicer 
294,  entitled  an  act  for  rates  for  highways,  reciting  that 
whereas  it  is  provided  by  act,  that  certain  persons  be  ap- 
pointed in  each  county  for  the  laying  out  of  highways  and 
bridges,  and  no  provision  is  yet  made  for  empowering  the 
inhabitants  of  each  town  or  hamlet  to  make  assessments  for 
defraying  the  charge,  provides  that  the  inhabitants  of  each 
town  or  hamlet,  or  out  plantations,  by  warrant  from  justices 
of  the  peace  of  such  town  or  hamlet,  choose  four  or  five  in- 
habitants, who  shall  have  power  to  make  such  taxes  for 
erecting  and  maintaining  bridges;  so  that  in  East  Jersey,  at 
least  so  early  as  1682  and  1686,  the  repairing  of  bridges  was 
charged  not  upon  the  inhabitants  of  the  county,  but  upon 
those  of  the  townships,  and  put,  as  it  rightly  should  be,  upon 
the  same  footing  as  highways. 

In  1694,  Learn.  &  Spicer  346,  reciting  the  act  of  1682,  the 
legislature  appointed  other  persons  in  the  place  of  those  named 
in  the  act  of  1682,  who  had  in  the  meantime  died. 

By  an  act  passed  in  West  Jersey  in  1684,  before  West 
Jersey  was  yet  divided  into  counties  (Learn.  &  Spicer  493), 
the  building  and  repairing  of  roads  and  bridges  were  made 
chargeable  upon  each  respective  tenth.  Counties  were  not 
mentioned  in  New  Jersey  till  1694.  Learn.  &  Spicer  530. 
So  that,  up  to  the  surrender  in  1703,  the  charge  of  repairing 
bridges,  by  express  enactment  in  East  Jersey,  was  upon  the 
towns,  and  in  West  Jersey  upon  the  tenths,  and  not  upon  the 
inhabitants  of  the  counties.  After  the  surrender  in  1718, 
1  NeviU  84,  the  legislature  passed  an  act  entitled  "  an  act  for 


140          NEW  JERSEY  SUPREME  COURT. 

State  v.  Hudson  County. 

the  building,  rebuilding,  repairing,  or  amending  of  bridges  in 
the  respective  towns  and  precincts  within  this  province,"  and 
which  act  minutely  regulated  the  whole  subject  of  bridges, 
charges  their  repairs  expressly  upon  the  towns,  and  provides 
.all  the  machinery  for  the  collection  of  the  necessary  taxes. 
This  principle  is  further  recognized  by  the  act  passed  in 
1723.  1  NevUl  168,  §9. 

That  the  repairing  of  bridges  by  the  general  laws  of  the 
province  was  chargeable  upon  the  towns,  and  not  upon  the 
counties,  is  expressly  recited  in  the  act  of  the  legislature  passed 
1741.  1  Nevill  275.  It  is  an  act  entitled  "an  act  for  build- 
ing, rebuilding,  and  repairing  bridges  in  the  county  of  Essex," 
and  recites — whereas  the  district  of  Acquackanonck,  in  the 
county  of  Essex,  is  for  a  considerable  space  in  length 
bounded  on  the  river  Passaic,  which  divides  Essex  from 
Morris  and  Bergen,  over  which  river  several  very  large 
bridges  are  already  built,  and  more  may  be  hereafter  neces- 
sary, the  one  half  of  the  expense  whereof  the  inhabitants  of 
said  Acquackanonck  are  by  the  general  lawn  of  the  province 
liable  to,  whose  situation  being  very  peculiar,  the  taxes  on 
the  .said  inhabitants  are  much  greater  than  those  of  the  other 
townships  of  Essex,  whereupon  the  inhabitants  of  Acquacka- 
nonck have  prayed  relief. 

The  act  then  charges  the  expense  of  all  building  and  re- 
pairing such  bridges  and  the  whole  of  the  expenses  of  all 
other  bridges  upon  the  whole  county  of  Essex. 

Nothing  can  be  plainer  than  that,  at  the  passage  of  this 
act  in  1741,  no  such  common  law  was  recognized  in  West 
Jersey  as  made  the  repairing  of  bridges  .chargeable  ujion 
the  counties.  By  the  act  passed  in  1 760,  2  Nevill  356,  § 
25,  26,  27,  it  was  still  recognized  as  the  general  law,  that 
the  repairing  of  bridges  was  chargeable  upon  the  townships, 
and  such  general  law  is  altered  in  several  res|>ect8  by  said 
act.  The  25th  section  of  this  act,  reciting — that  whereas 
there  are  many  bridges  within  this  province  which  belong 
to  particular  towns  and  precincts  to  amend  and  repair, 
which  cannot  be  sufficiently  repaired  by  day  labor  without 


NOVEMBER  TERM,  1862.  141 


State  v.  Hudson  County. 


the  assistance  of  particular  handicraftsmen,  be  it  enacted,  that 
where  there  are  any  bridges  in  any  of  the  towns  within  the 
counties  of  Burlington,  Somerset,  Gloucester,  Salem,  Cum- 
berland and  Sussex,  which  cannot  well  be  repaired  by  day 
laborers,  that  the  overseers,  &c.,  shall  contract  with  tradesmen 
and  have  them  built,  and  collect  the  money  from  the  towns 
where  they  are  located ;  and  the  27th  section  of  the  same  act, 
reciting,  that  whereas  the  following  counties,  Middlesex, 
Monmouth,  Essex,  Bergen,  Hunterdon  and  Morris,  have 
formally  requested,  and  some  have  by  their  humble  petition, 
presented  to  the  house  this  session,  desired  that  all  bridges 
requiring  handicraft  work  may  be  built,  rebuilt,  repaired, 
and  amended  at  the  sole  charge  and  expense  of  the  whole 
county  where  such  bridges  do  lie,  enacted  that  all  bridges 
within  said  counties  last  aforesaid  that  require  handicraft 
work  and  shall  want  repairing,  that  the  freeholders  shall 
contract  and  assess  the  costs  upon  the  inhabitants  of  the 
counties.  So  that  in  1760,  at  the  passage  of  this  act,  no 
such  common  law  as  that  the  inhabitants  of  counties  were 
chargeable  for  the  repairs  of  bridges  existed.  If  the  county 
became  responsible  it  was  by  force  of  the  statute,  and  not  of 
common  law.  This  act  remained  in  force  until  1774,  when 
it  was  repealed  by  the  act  entitled  an  act  for  regulating 
roads  and  bridges.  Allinson's  Laws  386,  §  46.  This  act  of 
1774,  sections  27  and  28,  copies  very  nearly  the  recitations 
in  the  act  of  1760,  showing  that  then,  if  the  counties  were 
chargeable  at  all,  it  was  by  force  of  statutory  law,  and  not  at 
common  law. 

Two  years  after  came  the  Revolution  and  the  first  consti- 
tution of  this  state.  This  provides  that  so  much  of  the 
statute  law  and  the  common  law  of  England  as  had  been 
used  here  should  continue  in  force.  As  no  English  statute 
had  ever  charged  the  repairing  of  bridges  upon  the  inhabit- 
ants of  the  counties  of  this  colony,  but,  on  the  contrary,  the 
statute  of  this  colony  had  for  an  hundred  years  charged  it  upon 
the  townships,  of  course  neither  the  statute  of  22  Henry  VIII., 
nor  any  other  English  statute,  aifected  the  question ;  and  as 

VOL.  r.  I 


142        NEW  JERSEY  SUPREME  COURT. 


State  v.  Hudson  County. 


no  principle  of  the  common  law,  in  the  presence  of  these 
colonial  statutes,  could  have  made  the  counties  chargeable, 
there  was,  at  the  adoption  of  the  constitution  of  1776,  no 
such  English  common  law  to  be  continued.  If,  therefore, 
the  inhabitants  of  counties  are  chargeable  for  the  repair  of 
bridges  in  the  townships  it  must  be  by  force  of  some  colonial 
or  state  statute. 

It  IB  a  principle  of  the  common  law  which  has  been 
adopted  in  this  state,  that  where  any  duty  to  the  public  is 
imposed  either  by  the  common  or  statute  law  the  party  so 
charged  is  indictable  for  neglect.  If  either  the  common  or 
statute  law  imposed  upon  the  inhabitants  of  counties  the  duty 
to  repair  bridge*,  they  are  indictable  if  they  allow  them  to  go 
out  of  repair.  But  we  have  seen  that  the  common  law  im- 
posed no  such  duty,  because  the  statute  law  of  the  colony 
placed  that  duty  on  the  township. 

The  only  question  remaining  is,  has  any  colonial  or  state 
statute  imposed  that  duty,  so  a*  to  make  the  whole  of  the  in- 
habitants of  a  county  indictable? 

The  inhabitants  of  the  counties  in  England  were  indictable 
by  virtue  of  two  principles  of  the  common  law.  The  first 
was,  that  the  common  law  imposed  the  duty  upon  all  and 
every  inhabitant  of  the  county,  jointly  and  severally,  to  keep 
the  bridges  in  repair.  The  second  was,  that  if  they  did  not 
perform  this  duty  they  were  indictable.  Here,  in  this  state, 
we  have  seen  that  the  common  law  imposed  no  such  duty  on 
the  inhabitants,  and  consequently,  then,  the  principle  that 
they  could  l>e  indicted  did  not  apply.  But  it  may  be  said 
here,  that  although  no  common  law  imposes  such  duty,  yet 
that  :i  statute  does,  and  they  therefore  are  indictable;  so  that 
the  question  is,  does  any  statute  in  New  Jersey  re-enact  the 
common  law  of  England,  and  ini|>ose  it  as  a  duty  upon  the 
inhabitants  of  a  county  to  repair  the  bridges?  The  duty 
hhould  be  plainly  and  directly  imposed  before  we  should 
decide  that  it  dot*.  For  what  are  the  consequences?  This 
principle  of  the  common  law,  that  it  was  the  duty  of  the  in- 
habitant* of  counties  to  rcjKiir,  was  a  duty  imjKwod  by  virtue 


NOVEMBER  TERM,  1862.  143 

State  v.  Hudson  County. 

of  their  inhabitancy,  and  in  case  of  neglect,  all  and  each,  col- 
lectively or  individually,  could  be  indicted,  and  each  one  was 
liable  in  his  own  person  and  property  to  punishment  as  for  a 
nuisance.  The  indictment  and  conviction  operate  the  same  as 
if  each  one  was  named  in  the  indictment,  and  they  are  not 
named  only  because  of  the  inconvenience  of  the  thing.  Each 
inhabitant  of  the  county,  upon  conviction,  is  liable  to  be  sent 
to  the  state  prison  for  two  years  as  for  a  nuisance.  As  Chief 
Justice  Holt  said  in  the  case  of  Regina  v.  The  Inhabitants  of 
the  County  of  Wilts,  6  Mod.  307,  "  If  the  order  to  repair  be 
not  obeyed,  an  attachment  may  issue  against  the  inhabitants 
of  the  whole  county,  and  catch  as  many  as  one  can  of  them ;" 
and  among  the  first  of  whom,  I  might  add,  might  probably 
be  the  prosecutor  of  the  pleas  of  the  county  of  Hudson. 

Our  statutes  must  therefore,  to  sustain  this  indictment, 
charge  the  repair  of  bridges  as  a  personal  duty  upon  all  and 
each  of  the  inhabitants  of  the  county,  as  a  personal  obligation. 
Such  was  the  principle  of  the  common  law,  and  it  was  be- 
cause of  such  a  principle  that  they  were  indictable.  Now  had 
.we  any  such  statutes  in  force  when  this  crime  of  omission, 
now  complained  of  in  1860-1,  was  committed? 

The  first  act  to  which  our  attention  has  been  called,  is  the 
one  incorporating  the  board  of  freeholders.  Nix.  Dig.  109.* 
This  act  has  been  in  force,  substantially  as  it  is  now,  since 
1794.  If  this  act  had  said  that  the  inhabitants  of  the  coun- 
ties shall  repair  bridges,  it  would  have  re-enacted  the  common 
law  of  England,  and  each  man  in  the  county  would  have  been 
indictable  for  their  want  of  repair. 

But  this  act  does  no  such  thing.  It  first  incorporates  the 
board  of  freeholders,  and  then  gives  them  power  to  raise  such 
sums  of  money  for  repairing  bridges  as  they  shall  deem  ade- 
quate and  proper.  Now  is  it  not  patent,  at  the  first  glance, 
that  this  is  an  entirely  different  thing  from  making  it  the  duty 
of  the  inhabitants  to  repair  bridges  ?  So  far  from  doing  so, 
it  places  the  duty,  if  anywhere,  upon  the  freeholders,  not 
upon  the  inhabitants. 

*Bev.,p.  127. 


144          NEW  JERSEY  SUPREME  COURT. 

State  v.  Hudson  County. 

Supjx>se  the  freeholders  raised  as  much  as  they  should 
deem  adequate  and  proper,  did  the  act  mean  to  make  every 
inhabitant  of  the  county  indictable  because  .somebody  else 
might  think  some  other  sum  adequate  and  proper?  or,  if  they 
did  not  raise  as  much  as  they  thought  adequate  and  proper, 
that  the  inhabitants  were  to  be  indicted  for  the  corruption  of 
the  board  of  freeholders;  that  one  set  of  men  should  commit 
the  crime,  and  another  set  suffer  the  punishment? 

But  again,  if  the  inhabitants  are  indictable  under  this  act 
for  not  repairing  bridges,  they  are  also  liable  to  indictment 
because  the  board  do  not  purchase,  build,  and  repair  poor- 
houses,  jails,  court-houses,  and  a  variety  of  other  matters, 
which  are  all  put  by  the  act  upon  the  same  footing.  It  is  ap- 
parent that  the  object  of  this  act,  so  far  from  being  designed 
to  re-enact  the  old  common  law  principle  making  it  the  duty 
of  the  inhabitants,  as  individuals,  to  repair  bridges  under  the 
penalty  of  indictment,  was  enacted  to  provide  machinery  to 
answer  the  public  purposes  without  that  principle. 

But  it  is  said  that  the  freeholders  are  but  the  agents  of  the 
county  to  repair,  and  if  they  do  not,  the  inhabitants  must. 
That  is  assuming  that  the  inhabitants  are  liable  at  common  law, 
which  we  have  shown  not  to  exist.  So  far  as  the  statute  is 
concerned,  they  are  not  agents  of  the  county.  They  are  chosen 
by  the  towns,  ami  are  created  by  the  legislature  a  tribunal 
to  tax  the  inhabitants  at  their  discretion ;  and  because 
they  have  the  power  to  tax  the  inhabitants  more  or  less, 
are  the  inhabitants  indictable  because  opinions  may  differ  as  to 
the  amount  the  freeholders,  in  the  fair  discharge  of  their  duty, 
ought  to  tax?  The  freeholders  are  agents  of  the  county,  not 
as  constables  and  other  township  officers  are  agents;  and  we 
might  just  as  well  indict  all  the  inhabitants  of  a  county  be- 
cauM:  a  constable  will  not  serve  a  warrant  or  a  justice  of  the 
|>eace  hear  a  cause. 

We  are  next  referred  to  the  statute  concerning  bridges, 
jfix.  Dig.  79.*  This  act  has  also  substantially  been  in  force 
bince  1798.  It  provides  that  when  bridges  are  to  !»•  built  or 
repaired,  the  overseers  of  the  highways  are  to  give  notice  to 

.  M. 


NOVEMBER  TERM,  1862.  145 


State  v.  Hudson  County. 


the  board  of  freeholders,  or  part  of  them,  and  then  the  free- 
holders are  to  decide  upon  the  matter,  and  if  to  build,  to  pay 
the  expenses  out  of  the  county  funds.  How  this  provides 
that  the  inhabitants  shall  be  indictable  for  not  repairing,  is 
more  than  I  can  see.  If  they,  under  this  statute,  are  indicta- 
able  for  not  repairing,  they  are  also  indictable  for  not  build- 
ing, which  was  never  the  case  at  common  law.  But  how  is 
it,  or  why  is  it,  that  because  the  freeholders  are  to  decide 
whether  they  will  repair  or  not,  and  to  pay  out  of  the  county 
funds  if  they  do  decide  to  repair,  that  the  inhabitants  are  in- 
dictable if  the  freeholders  decide  the  one  way  or  the  other  ? 

The  truth  of  the  whole  matter  is  obviously  this :  by  the 
common  law  of  England,  the  inhabitants  of  counties,  from 
time  immemorial,  had  been  charged  for  the  repair  of  bridges 
within  their  bounds,  and  were  indictable  in  the  King's  Bench 
for  not  doing  so.  They  were  not  indictable  as  a  corporation, 
but  individually  and  by  reason  of  their  inhabitancy  of  the 
county,  like  hundreds  were  under  the  constitution  of  king 
Alfred,  for  a  loss  within  their  bounds  by  robbery.  This  was 
an  inconvenient  arrangement.  The  inhabitants  had  no,  or 
very  inconvenient,  machinery  to  raise  the  money  or  fine 
among  themselves.  The  sentence  went  against  them  indi- 
vidually, and  enforced  against  the  first  the  officers  could 
catch,  and  kept  on  till  the  bridge  was  repaired ;  and  those 
who  were  so  unlucky  as  to  be  caught  had  to  get  contribution 
from  the  rest  of  the  inhabitants  as  best  they  could.  Then 
came  the  statute  of  22  Henry  VIII.,  upon  which  have  been 
built  and  framed  all  the  acts  passed  both  in  England  and 
this  state  since,  and  by  paring,  chipping,  and  patching  which 
our  own  present  statutes  have  been  formed.  The  statute  of 
22  Henry  VIII.  had  two  objects  in  view ;  one  was  to  give  the 
Quarter  Sessions  jurisdiction  over  indictments  at  common 
law  for  not  repairing  bridges,  and  so  bring  justice  near  the 
people;  and  the  other  was  to  provide  convenient  machinery 
to  raise  taxes  to  repair  bridges,  and  by  that  means  prevent 
the  necessity  of  indicting  the  inhabitants  for  not  repairing. 

The  statute  of  22  Henry  VIII.  consequently  left  there  un- 


146          NEW  JERSEY  SUPREME  COURT. 

State  v.  Hudson  County. 

touched  the  common  law  principle,  that  the  inhabitants  of 
counties  should  repair,  and  gave,  first,  jurisdiction  to  the 
Quarter  Sessions,  as  well  as  the  King's  Bench,  to  try  and 
present  the  inhabitants  for  not  repairing;  and  second,  by 
giving  to  certain  officers  power  to  raise  taxes  to  repair 
bridges.  This  statute  consequently  left  the  inhabitants  of 
counties  in  England  liable  to  indictment  if  for  any  reason 
the  bridges  wort'  not  repaired. 

But  when  this  colony  began  to  be  settled,  almost  the  first 
thing  they  did  was  to  relieve  the  inhabitants  of  counties  from 
the  obligation  to  repair,  by  putting  it  on  the  townships,  and 
so  the  liability  remained  here  for  an  hundred  years,  and 
until  the  Revolution. 

The  statute  of  22  Henry  VIII.  provided  a  tribunal  to  ad- 
judicate if  the  repairs  were  necessary  before  the  tax  to  re- 
pair was  ordered,  and  these  matters  were  modified  by  sul>se- 
quent  English  statutes.  The  first  attempt  on  the  part  of  this 
colony  to  assimilate  our  legislation  to  that  of  England  was- 
theact  of  1760. 

Our  legislature,  from  time  to  time  since  1760,  have  at- 
tempted to  further  assimilate  our  legislation  on  this  subject 
to  that  of  England,  and  of  which  the  statute  of  22  Ilenrv 
VIII.  is  the  groundwork.  But  in  all  our  attempts,  we  have 
assiduously  and  always  ignored  the  principle  of  holding  the 
inhnbHunt*  of  Cfjuntieii  responsible  for  repairs.  Finding,  in 
1760  and  since,  that  this  liability  had  always  been  on  the 
townships,  our  legislatures  have  merely  followed  the  statute 
of  22  Henry  VIII.  so  far  as  to  provide  a  tribunal  to  decide 
U|K)ii  the  necessity  of  the  repair  and  the  machinery  for  the 
neet-ssary  taxation.  The  consequence  was,  that  as  the  stat- 
ute of  22  Henry  VIII.  found  the  inhabitants  of  the  county 
in  England  responsible  for  repairs,  it  left  them  so,  and  onr 
statute*  finding  them  not  responsible,  left  them  so,  and  .boih 
provided  a  tribunal  to  decide  uj>on  their  necessity  and  the 
machinery  to  collect  the  necessary  taxes.  Thus  the  colonial 
acts  of  1760  and  of  1774  required  the  justices  of  certain  of 
the  counties  to  decide  ujxm  the  necessity  of  the  repair,  and 


NOVEMBER  TERM,  1862.  147 

State  v.  Hudson  County. 

then  ordered  the  freeholders  absolutely  to  repair.  This 
might  have  made  the  freeholders  liable  to  indictment,  but 
certainly  could  not  make  the  inhabitants  of  the  county  liable. 
But  whether  it  did  or  not,  these  acts  were  repealed  in  1798 
by  the  acts  now  in  force. 

The  laws  now  in  force,  Nix.  Dig.  110  and  79,*  substitute 
the  board  of  freeholders  in  the  place  of  all  the  other  ma- 
chinery in  the  act  of  22  Henry  VIII.  for  adjudicating  if  the 
repairs  be  necessary,  and  upon  the  amount  and  the  raising 
of  the  tax;  and  all  the  rest  of  the  statute  of  22  Henry  VIII. 
affirming  the  common  law  liability  of  the  inhabitants  of  the 
county  is  certainly  left  out,  showing  that  the  legislature  never 
meant  to  re-enact  in  this  state  the  liability  of  the  inhabitants 
of  counties,  but  to  place  the  whole  matter  of  building,  as  well 
as  repairing  bridges,  under  the  discretion  of  a  tribunal  created 
by  themselves  for  that  purpose. 

This  legislation  might,  perhaps,  have  relieved  the  inhabit- 
ants of  townships  from  the  liability  of  indictment  for  not  re- 
pairing, but  could  not  thereby  impose  any  such  consequences 
upon  the  inhabitants  of  counties.  The  question  whether  the 
inhabitants  of  townships  or  the  board  of  freeholders  can  be 
indicted  for  not  repairing  bridges,  is  not  now  before  us,  and  all 
we  could  say  upon  these  subjects  would  be  mere  dicta.  We 
only  wish  not  to  be  considered  as  acquiescing  in  the  dicta  in 
the  books,  that  the  board  of  freeholders  may  be  indicted. 

But  it  appears  to  me,  that  there  is  another  fatal  defect 
upon  the  face  of  this  indictment.  It  charges  that  the  bridge 
over  the  Morris  canal  is  out  of  repair,  and  that  the  inhabit- 
ants of  Hudson  are  bound  to  repair.  Now,  supposing  the 
old  English  common  law  to  be  in  force  here,  what  authority, 
ancient  or  modern,  can  be  found  tliat  all  the  inhabitants  of  a 
county,  at  common  law,  were  indictable  for  not  repairing  a 
bridge  over  a  canal  ?  A  bridge  over  a  canal  is  not  such  a 
bridge  as  the  inhabitants,  at  common  law,  were  indictable 
for  not  reputing.  Canals  are  devices  contrived  long  after 
this  common  law  was  made.  A  bridge,  in  the  technical 

*Eev.,  pp.  127,  84. 


148          NEW  JERSEY  SUPREME  COURT. 


State  v.  Jersey  City. 


meaning  of  the  common  law,  ex  vi  fa-mini,  was  a  structure  for 
passage  over  a  river,  not  over  a  ditch. 

The  old  indictment  used  to  run,  that  a  certain  "pons  super 
flumen"  was  out  of  repair — a  .structure  over  running  water — 
and  these  words  are  left  out  of  the  more  modern  indictments 
only  because  it  was  supposed  that  the  term  bridge  meant  ex 
m  termini  pons  tmper  flumcn. 

A  canal  is  of  nearer  kin  to  ditch  than  it  is  to  a  run.  It  is 
nothing  more  nor  less  than  obstruction  to  the  highway,  and 
its  repair  can  only  be  a  question  between  the  township  or  the 
board  of  freeholders  and  the  canal  company,  and  not  between 
the  canal  company  and  the  inhabitants  of  the  county. 

The  inhabitants  of  counties  were  never  responsible  at  com- 
mon law  for  artificial  obstructions  in  a  highway,  and  bound 
to  build  bridges  over  them  under  penalty  of  indictment. 
They  are  not  bound  to  build  bridges  by  force  of  the  common 
law  of  England  over  walls,  or  railroads,  or  gutters,  or  ditches, 
or  mere  puddles,  but  over  those  obstructions  in  highways 
arising  from  flowing  waters. 

The  only  bridges  they  were  bound  to  repair  were  ponies 
super  flumina. 

CITED  in  WhilaU  v.  Freeholders  of  Gloucester,  11  Vroom  306. 


THE  STATE,  VICTOR  PIAKD  AND  OTHERS,  PROSECUTORS*  v. 
THE  MAYOR  AND  COMMON  COUNCIL  OF  JERSEY  CITY. 

SAME  v.  THE  WATER  COMMISSIONERS  OF  JERSEY   CITY. 

1.  The  water  commissioner*  of  Jemey  City  arc  authorised  to  execute  tho 
plan  of  sewerage  adopted  by  lliom,  "  with  sucli  changes  or  alterations 
a-  in. iv  Ite  found  convenient  or  m-<  •  --:u  \  in  the  pn»gn'N«  of  tin-  work  ;  " 
if  tli«-  general  plan  contemplated  llie  iweof  an  old  newer,  the  cortniii.s- 
siontTH,  if  ilicv  find  it  convenient  and  m-ceiwary,  may  abandon  thai 
part  of  tin-  plan,  and  conntrurl  a  new  hewer  in  pla<>e  of  the  old  one 
Of   tin-  tho   conimiiuiioncm  are  the  Hole  judge*,  and   having  acted 
thereon,  thin  court  (HIM  no  authority  to  review  their  deeiHion. 

2.  The  charter  require*  the  Hignaitire  of  the  mayor  to  nil  reitoluliuim 
affecting  the  intent*!*  of  the  city :  /•./«/,  that  a  reHolution  of  tho  coiu> 


NOVEMBER  TERM,  1862.  149 


State  v.  Jersey  City. 


mon  council  referring  a  petition  for  a  sewer  to  the  committee  on  sewer- 
age does  not  require  the  signature  of  the  mayor. 

3.  By  the  act  of  1854,  (Laws  1854,  404,)  the  legislature  intended,  after  the 
general  plan  of  sewerage  was  adopted  by  the  city,  to  secure  the  execu- 
tion of  it  by  the  water  Commissioners,  and  to  take  from  the  mayor  and 
common  council  all  duties  and  authority  respecting  it,  except  on  ap- 
plication, after  giving  notice  and  hearing  objections,  to  determine  the 
time  when  the  work,  or  any  part  of  it  should  be  done. 


On  certiorari  to  review  proceedings  of  the  common  council 
.and  the  water  commissioners  of  Jersey  City. 

For  the  plaintiff,  I.  W.  Scudder. 
For  the  defendant, . 

The  opinion  of  the  court  was  delivered  by 

BROWN,  J.  These  certioraris  bring  up  for  review  the  pro- 
ceedings of  the  common  council  and  the  water  commissioners 
•of  Jersey  City,  in  relation  to  the  construction  of  the  Grand 
street  sewer,  and  the  assessment  of  the  expenses  of  the  same 
upon  the  owners  of  property. 

The  first  reason  assigned  on  the  argument  was,  that  the 
proposition  for  the  improvement,  as  made  in  the  petition,  was 
vague. 

This  reason  is  not  supported  by  the  facts.  The  termini 
of  the  sewer  are  stated  in  the  petition,  its  connections,  the 
mode  of  finishing,  and  lateral  sewers,  the  whole  to  be  done 
according  to  the  general  plan  of  sewerage.  The  city  had 
previously  adopted  a  general  plan  of  sewerage,  and  the  same 
had  been  sanctioned  by  law.  The  proposition,  taken  in  con- 
nection .with  the  reference  to  this  plan,  seems  sufficiently 
definite. 

The  next  point  made  against  the  proceedings  was,  that 
the  proposition  for  a  new  sewer  in  Grand  street  was  a  de- 
parture from  the  plan  of  sewerage  referred  to ;  that  the  plan 
.adopted  an  existing  sewer  as  part  of  it,  and  this  proposition 
was  for  a  new  sewer.  I  have  not  the  means  before  me  of 
.ascertaining  the  fact  as  to  this;  but  the  application  is  made 


150          NEW  JERSEY  SUPREME  COURT. 

State  v.  Jersey  City. 

for  a  work  to  be  done  according  to  the  general  plan  of  sewer- 
age, and  the  order  of  the  common  council  directing  the 
water  commissioners  to  proceed  with  the  work  contains,  also, 
a  direction  that  the  whole  shall  conform  to  the  general  plan 
of  city  sewerage.  If  the  water  commissioners  have  departed 
from  that  plan,  it  is  not  therefore  by  the  order  of  the  com- 
mon council,  but  by  their  own  authority.  The  legislation 
respecting  the  sewerage  of  Jersey  City  gives  to  the  water 
commissioners  authority  to  execute  the  plan,  "  with  such 
changes  or  alterations  as  may  be  found  convenient  or  neces- 
sary in  the  progress  of  the  work."  Laws  of  1854,  403,  §  1. 
If  the  general  plan  contemplated  the  use  of  an  old  sewer,  it 
is  manifest  that,  in  attempting  to  execute  it,  the  commission- 
ers might  find  it  convenient  and  necessary  to  abandon  that 
part  of  the  plan,  and  construct  a  new  sewer  in  place  of  the 
old.  Of  this  the  commissioners  are  the  sole  judges,  and 
having  acted  upon  their  judgment,  this  court  has  no  author- 
ity to  review  their  decision.  This  point  was  considered  by 
the  Court  of  Errors  and  Appeals  in  the  case  of  The  State, 
Vanderbeck  and  ot/iers,  prosecutors,  v.  Jersey  City,  5  Dutcher 
441,  and  several  material  departures  from  the  general  plan 
held  not  to  be  fatal  to  the  proceedings  and  assessment.  The 
opinion  of  the  court  was  read  by  the  Chancellor,  and  the 
power  of  the  commissioners  so  to  vary  the  work  fully  sustained. 

Again,  it  is  objected  that  the  notice  to  persons  interested 
required  objections  in  writing,  when  they  were  by  the  charter 
entitled  to  a  hearing. 

It  appears,  by  the  return,  that  two  notices  were  given,  one 
for  a  hearing  before  the  committee  on  sewers,  and  the  other 
for  objections  in  writing  to  be  made  to  the  common  council; 
the  latter  was  not  required,  but  the  proceedings  are  not  there- 
fore invalid.  The  hearing  was  not  limited  to  objections  in 
writing. 

Again,  it  is  objected  that  the  resolution,  passed  April  7th, 
1857,  by  the  council,  referring  the  }>etition  to  the  committee 
on  sewerage,  was  not  signed  by  the  mayor.  The  charter 
requires  the  signature  of  the  mayor  to  all  resolutions  affect- 


NOVEMBER  TERM,  1862.  151 

State  v.  Jersey  City. 

ing  the  interests  of  the  city.  As  the  city  at  large  pays  no 
part  of  the  expenses  of  this  improvement,  and  only  a  portion 
is  benefited  by  it,  it  cannot  be  said  that  such  a  resolution 
affects  the  interests  of  the  city. 

Several  objections  are  taken  to  other  proceedings  of  the 
council  which  seem  to  have  been  necessary,  and  if  so,  these 
objections  need  not  be  considered. 

By  the  supplement  to  the  act  to  authorize  the  construction 
of  works  for  the  supplying  of  Jersey  City  with  water,  passed 
March  16th,  1854,  Laws,  403,  §  3,  it  is  provided,  that  when 
application  shall  be  made  to  the  council  to  have  a  sewer  con- 
structed, the  same  preliminary  proceedings  shall  be  had  as 
are  now  authorized  by  the  charter ;  and  if  the  council,  after 
consideration  of  the  application  and  objections,  shall  decide 
that  the  sewer  ought  to  be  constructed,  they  shall  give  notice 
in  writing  of  such  decision  to  the  water  commissioners,  who 
shall  thereupon  proceed  to  construct  the  same.  The  prelim- 
inary proceedings  here  referred  to  are  those  only  whicli  pre- 
cede the  decision  of  the  council  that  the  sewer  should  be 
constructed;  and  this  decision,  by  the  charter,  is  to  follow 
immediately  upon  the  hearing  of  objections  to  the  proposition, 
on  notice  of  time  and  place  for  that  purpose.  This  appears 
clearly  by  reference  to  the  55th  section  of  the  charter^ 
(Laws  1951,  416.)  It  is  there  enacted  that,  when  any  appli- 
cation shall  be  made  for  constructing  sewers,  the  council 
shall  appoint  a  time  when  persons  interested  therein  may  be 
heard  before  them,  or  the  appropriate  committee,  on  the 
merits  of  such  application,  and  shall  give  notice,  &c. ;  and  if 
the  council  shall  determine  to  construct  such  sewers,  they 
shall  appoint  commissioners  to  assess  the  cost  upon  the  lands 
benefited,  &c.  This  section  further  provides,  that  if  a  re- 
monstrance be  filed  by  one-half  of  the  owners  of  the  lands 
assessed  the  council  shall  proceed  no  further ;  and  if  no  re- 
monstrance, then  the  work  shall  be  done  and  the  assessments 
paid.  It  provides  also  an  appeal  for  any  landholder  who  is 
dissatisfied.  All  these  proceedings  for  assessment  of  cost 
upon  lands  benefited  are  repealed,  so  far  as  respects  the  con- 
struction of  sewers.  No  commissioners  should  be  appointed, 


152          NEW  JERSEY  SUPREME  COURT. 

Belts  v.  Francis. 

and  a  remonstrance  of  the  owners  would  be  of  no  avail.  By 
the  act  of  1854,  above  referred  to,  as  soon  as  the  council  shall 
determine  to  construct  the  sewer  they  are  (not  to  appoint  com- 
missioners) but  to  give  notice  in  writing  to  the  water  commis- 
sioners, who  are  thereupon  to  proceed  to  construct  the  same; 
and  when  constructed,  by  section  4th  of  the  same  act,  the 
water  commissioners  (not  commissioners  appointed  by  council) 
are  to  assess,  not  according  to  l)enefits,  but  in  proportion  to 
dimensions,  without  reference  to  situation  or  value.  It  is  quite 
clear  that  the  legislature  intended,  after  the  general  plan  of 
sewerage  was  adopted  by  the  city,  to  confirm  it  by  law,  to 
secure  the  execution  of  it  by  the  water  commissioners,  and  to 
take  from  the  mayor  and  common  council  all  duties  and  au- 
thority respecting  it,  except  on  application,  after  giving  notice 
and  hearing  objections,  to  determine  Vie  time  when  the  work, 
or  any  part  of  it,  should  be  done.  In  these  particulars  the 
law  has  been  complied  with,  and  whatever  else  may  have  been 
erroneously  done  furnishes  no  reason  for  setting  aside  these 
proceedings.  The  objection,  that  the  projKM-ty  had  been  as- 
sessed for  the  old  sewer,  and  ought  not  therefore  to  be  again 
assessed,*  is  answered  by  the  ca.se  of  Tlie.  State,  Vanderbeck  and 
others,  prosecutors,  v.  Jersey  City,  above  referred  to. 

Proceedings  confirmed. 
ClTED  in  Stale,  Fiacre  et  al.,  pros.,  v.  Mayor,  &c.,  ofjersry  City,  5  Vroom  279. 


FREDERICK  B.  I1ETTS  v.  JOHN  M.  FRANCIS. 

1.  Titl«  to  goods  and  chattels  may  pass  by  gift  inter  rivn*  when  there  is 
a  delivery  of  the  projx>rty.     Mere  delivery  of  the  g<xxls  will  not  in 
general  piuw  the  title;  there  must  l»e  an  intention  to  give  accompany- 
ing the  act  of  delivery  in  order  to  consummate  the  gift,  or  the  circum- 
•lance*  attending  ihu  delivery  of  the  g<xxl«  must  IK;  such  OH  ordinarily 
ai-.-,.iii|.:uiy  a  gift,  inducing  tin-  donee  to  believe  that  a  gift  was  in- 
tended.    If  that  be  the  ca*c,  the  title  to  the  goods  will  pass,  although 
it  may  not  IK*  the  secret  intention  of  the  donor  to  make  a  gift. 

2.  When  n  gift  in  completed  by  di-livi-ry  :md  acceptance  of  the  chattel,  it 
i»  Irrevocable.     So  long  a*  there  i-  no  delivery  and  acceptance  it  may 
be  revoked. 


NOVEMBER  TERM,  1862.  153 


Betts  v.  Francis. 


In  replevin.  On  rule  to  show  cause  why  verdict  should 
not  be  set  aside. 

This  was  an  action  brought  in  this  court,  and  upon  the 
trial  of  the  issue  at  the  Hudson  Circuit,  at  the  term  of  De- 
cember, 1861,  a  verdict  was  rendered  for  the  plaintiff  for  six 
cents  damages.  On  the  coming  in  of  the  postea,  a  rule  was 
obtained  that  the  defendant  should  show  cause  why  the  ver- 
dict should  not  be  set  aside,  and  a  new  trial  granted.  The 
principal  reason  assigned  was,  that  the  judge  at  the  trial 
charged  the  jury  erroneously  in  regard  to  the  legal  title  to  the 
property  in  dispute. 

The  rule  was  argued  by  C.  H.  Winfidd,  for  the  plaintiff, 
and  J.  R.  Wortendyke,  for  the  defendant. 

The  opinion  of  the  court  was  delivered  by  the 

CHIEF  JUSTICE.  The  point  litigated  in  this  action  of  re- 
plevin at  the  circuit  was  whether  the  property  replevied  was 
in  the  plaintiff  in  replevin,  Frederick  B.  Betts,  or  in  one 
Archibald  G.  Rogers,  who  claimed  it  by  virtue  of  a  mortgage 
upon  the  same,  executed  by  Frederick  F.  Betts,  the  son  of 
Frederick  B.  Betts,  to  secure  a  debt  due  to  Rogers,  in  part  for 
money  borrowed  at  the  time  of  the  execution  of  the  mortgage, 
and  in  part  for  a  debt  then  due  from  the  mortgagor  to  the 
mortgagee. 

At  the  time  of  the  execution  of  the  mortgage  the  son  was, 
with  his  wife,  keeping  house  in  Jersey  City,  using  the  furni- 
ture, the  subject  of  the  replevin,  for  that  purpose,  and  being 
in  its  sole  and  exclusive  possession.  Before  Rogers  would 
advance  the  money  on  the  mortgage  to  Betts,  who  applied  to 
him  for  it,  he  required  him  to  make  an  affidavit  that  the  prop- 
erty was  his,  which  he  did. 

Previous  to  this  time,  Betts  the  younger  had  been  insolvent, 
and  had  been  relieved  from  his  debt  by  the  two-thirds  act  in 
New  York,  where  he  resided  at  that  time.  Rogers  was  one 
of  his  creditors.  He  married,  and  for  a  time  lived  with  hi* 
father  in  Jersey  City. 


154          NEW  JERSEY  SUPREME  COURT. 


Belt*  v.  Francis. 


His  father  hired  the  house  in  Jersey  City  for  his  son,  and 
purchased  the  furniture  in  controversy,  and  placed  it  in  the 
house  for  his  son's  use.  The  son  and  his  wife  then  commenced 
housekeeping. 

At  the  time  of  the  purchase  of  the  furniture,  and  putting 
it  in  the  son's  possession,  not li ing  was  said  by  the  father  to  the 
sou  as  to  the  ownership  of  the  furniture ;  the  father  did  not 
intimate  that  the  furniture  was  not  to  be  a  gift  from  him  to 
his  son. 

On  the  trial,  the  father  testified  that  he  did  not  intend  to 
give  the  furniture  to  his  son  when  he  placed  it  in  the  house, 
and  intended  to  retain  the  property  in  himself.  He  said  he 
never  removed  any  of  the  goods  while  his  son  was  keeping 
house ;  that  he  could  not  say  what  acts  of  ownership  he  had 
exercised  over  the  goods  while  there;  that  his  son,  his  wife, 
and  his  son's  mother-in-law  lived  in  the  house ;  that  he  put  the 
goods  there  for  him  to  enjoy.  The  son  went  to  the  house  to 
live  in  the  spring  of  1859,  and  left  there  in  February,  1861. 
The  son,  during  this  time,  was  in  the  employ  of  the  father,  at 
a  salary  of  $2000. 

Upon  this  state  of  facts,  the  judge  at  the  circuit  refused  to 
submit  the  question,  whether  the  property  had  been  given  by 
the  father  to  the  son,  to  the  jury;  charging  that  the  son 
had  no  claim  to  the  property  as  against  the  father,  and  as  a 
consequence,  that  the  mortgage  given  by  him  to  Rogers  was 
invalid. 

Title  to  goods  and  chattels  may  pass  by  gift  inter  vivoa 
when  there  is  a  delivery  of  the  property.  Mere  delivery  of 
the  goods  will  not  in  general  pass  the  title:  there  must  be 
an  intention  to  give  accompanying  the  act  of  delivery  in 
order  to  consummate  the  gift,  or  the  circumstances  authorizing 
the  delivery  of  the  goods  must  In;  such  as  ordinarily  accompany 
a  gift,  inducing  the  donee  to  believe*  that  a  gift  was  intended  ; 
if  that  be  the  case  the  title  to  the  goods  will  pass,  although 
it  may  not  be  the  secret  intention  of  the  donor  to  make  a 
gift.  ' 

The  donor  may  not  deliver  the  pro|>erty  to  the  donee  with 


NOVEMBER  TERM,  1862.  155 


Betts  v.  Francis. 


all  the  usual  circumstances  attending  a  gift,  and  denoting  it, 
suffer  the  donee  to  remain  in  possession  for  an  indefinite 
period,  and  then,  under  perhaps  changed  circumstances, 
divest  the  apparent  owner  of  his  property  by  coming  upon 
the  stand,  and  declaring  that  it  was  not  his  intention  to 
make  a  gift. 

When  a  gift  is  completed  by  delivery  and  acceptance  of 
the  chattel  it  is  irrevocable.  So  long  as  there  is  no  delivery 
and  acceptance  it  may  be  revoked.  2  Kent's  Com.  438 ;  2 
El.  Com.  441.  . 

The  law  will  raise  the  presumption  of  a  gift  by  father  to 
son  from  circumstances  where  it  would  not  be  implied  be- 
tween strangers.  Ridgway  v.  English,  2  Zab.  409. 

On  a  purchase  of  land  by  the  father  in  the  name  of  the 
son  a  trust  will  not  result  to  the  father,  unless  there  be 
other  evidence  to  rebut  the  presumption  of  a  gift  or  advance- 
ment arising  from  the  relation  of  parent  and  child.  Leioin 
on  Trusts  207,  and  cases  there  cited. 

When  a  son  or  daughter  marries,  and  is  about  setting  up 
a  separate  establishment,  and  the  father  provides  the  neces- 
sary outfit  for  housekeeping,  such  as  proper  furniture  for  the 
dwelling  house,  and  transfers  the  possession  to  the  son  or 
daughter  without  qualification  or  reservation  made  at  the 
time,  a  presumption  arises  that  the  transaction  is  a  gift, 
prompted  by  natural  affection  of  the  donor,  and  this  pre- 
sumption should  prevail.  But  it  is  a  presumption  of  fact  for 
the  jury,  and  not  of  law  for  the  court.  This  presumption  is 
liable  to  be  rebutted  by  other  evidence  showing  that  the 
donor  and  donee  did  not  so  consider  it. 

It  is  a  presumption  of  fact,  because  such  conduct  is  uni- 
versally considered  as  denoting  a  gift  of  the  chattels. 

What  would  be  thought  of  a  father  who  would  furnish  his 
daughter's  house,  put  his  son-in-law  in  possession  of  the  fur- 
niture, and  in  a  year  or  two  demand  possession,  and  bring 
replevin  for  its  recovery  ? 

In  what  does  the  case  of  furnishing  a  son's  house  differ 
from  the  one  just  put?  The  usage  of  society  is  the  same  in 


156          NEW  JERSEY  SUPREME  COURT. 


Belts  y.  Francis. 


both  cases.  The  case  of  the  furniture  of  a  house  seems  to 
raise  the  strongest  possible  presumption  of  a  gift — much 
stronger  than  putting  the  son  in  possession  of  a  horse  or  a 
slave. 

The  course  of  judicial  decision  on  this  point  has  not  been 
uniform,  and  for  the  reason,  perhaps,  that  in  the  cases  that 
have  come  before  the  courts  the  question  has  arisen  between 
the  father  seeking  to  exempt  the  property  from  seizure  for 
the  debts  of  the  sou  or  son-in-law  and  his  creditors.  2  Phil, 
on  Eo.  289,  294;  HollowcU  v.  Spinner,  4  Ir&lelt  165;  Par- 
rel v.  Perry,  1  Hay\l  Rep.  2 ;  Carter's  Ex'rs  v.  Rutland,  1 
Hatfd  97;  Ford  v.  Aikin,  4  Rich.  133;  Kecne  v.  Macey,  4 
Bibb  35,  are  authorities  supporting  the  view  I  have  taken 
of  this  question.  Collins  v.  Loffus,  10  Leigh  10 ;  Slaughter's 
Adm'r  v.  Tutt,  12  Leigh  156,  are  decisions  to  the  contrary. 

If  the  ROD'S  right  to  hold  the  property  was  complete,  he 
could  mortgage  it  to  secure  a  precedent  debt,  or  one  con- 
tracted at  the  time. 

Where  the  father  puts  the  sou  in  possession  of  household 
furniture  suitable  to  his  station  in  life,  without  acquainting 
him  that  the  transaction  is  not  what  on  its  face  it  purports 
to  be,  and  what  the  world  understands  it  to  be,  he  puts  in  the 
power  of  the  son  honestly  to  represent  it  as  his  own,  and  to 
contract  debts  on  its  security,  and  he  should  not  l>e  allowed 
to  deprive  creditors  of  their  security  by  an  ex  post  facto  pro- 
mulgation of  his  secret  intentions.  By  his  own  conduct  he 
authorizes  the  son  to  assert  a  property  in  the  goods;  and  if 
creditors  act  upon  his  assertion,  and  advance  money,  or  suffer 
the  son  to  contract  a  debt  on  the  faith  of  the  projierty,  the 
father  ought  not  to  be  permitted  to  dispute  the  son's  right. 
In  such  case  the  father  is  bound  by  the  son's  declaration  as 
if  it  were  his  own. 

The  question  whether  F.  F.  Betts  was  the  owner  of  the 
property  by  gift  from  his  father,  .-hotild  have  been  left  to  the 
jury,  with  proper  instructions.  This  was  not  done,  and  'or 
this  cause  I  think  the  verdict  should  Ix?  (*et  aside,  and  a  new 
trial  granted. 

Verdict  set  aside. 


NOVEMBER  TERM,  1862.  157 

Betts  v.  Francis. 

ELMER,  J.  The  goods  and  chattels  in  dispute,  consisting 
of  household  furniture,  were  mortgaged  to  Archibald  J. 
Rogers,  by  Frederick  F.  Beits,  November  1st,  1859,  and  the 
defendant  claims  them  under  that  instrument.  If  they  were 
the  property  of  the  mortgagor,  it  is  admitted  that  the  defend- 
ant was  entitled  to  the  verdict. 

The  plaintiff  was  himself  examined  as  a  witness,  and  testi- 
fied that  he  purchased  the  goods  in  the  spring  of  1859,  and 
paid  for  them.  They  were  delivered,  by  his  direction,  to  his 
son,  Frederick  F.  Betts,  who  was  of  age  and  had  recently 
married,  at  his  dwelling  in  Jersey  City,  the  rent  of  which 
was  paid  by  plaintiff,  and  they  were  in  the  son's  possession, 
and  used  by  him  when  the  mortgage  was  executed.  He  also 
stated  that  his  son  was  at  that  time  a  clerk  in  his  store,  at  a 
salary ;  that  he  did  not  himself  exercise  any  acts  of  owner- 
ship over  the  goods,  nor  did  he  know  that  his  son  claimed  to 
own  them  ;  that  his  son  was  not  to  refund  the  price  of  the 
goods,  nothing  being  said  about  it,  and  there  being  no  writing 
in  reference  to  them;  that  he  put  the  goods  in  his  son's  house 
for  him  to  enjoy ;  knew  his  son  was  in  debt ;  put  the  furniture 
in  the  house  because  he  knew  he  was  in  debt,  and  therefore 
did  not  give  it  to  him. 

It  was  the  instruction  of  the  court  to  the  jury,  that  there 
was  nothing  in  the  testimony  that  would  enable  Frederick 
F.  Betts,  the  son  of  the  plaintiff,  to  maintain  a  claim  against 
the  father,  Frederick  B.  Betts,  for  the  goods  in  question,  and 
therefore  persons  claiming  under  the  son,  by  mortgage  or  bill 
of  sale  could  not  maintain  their  title  as  against  the  plaintiff; 
and  in  pursuance  of  this  instruction,  the  jury  rendered  a 
verdict  for  the  plaintiff.  The  case  therefore  turns  upon  the 
question,  whether,  under  the  circumstances,  the  jury  would 
have  been  warranted  in  finding  that  the  goods  were  to  be 
considered  as  a  gift  from  the  father  to  the  son  ;  for  if  they 
would,  it  was  an  error  in  the  court  to  instruct  the  jury  as  it 
did. 

To  constitute  a  gift  between  living  persons,  if  there  be  no 
deed,  a  delivery  and  acceptance  are  necessary.  Both  of 

VOL.  i.  K 


158          NEW  JERSEY  SUPREME  COURT. 

BetU  v.  Francis. 

these  requisites  were  complied  with  in  this  case,  unless  the 
testimony  of  the  plaintiff  himself,  that  he  did  not  give  his 
son  the  goods  must  be  held  to  preclude  the  presumption 
from  the  facts,  that  what  took  place  amounted  to  a  gift. 
Had  the  father  distinctly  declared,  at  the  time  the  goods 
were  delivered,  that  liis  intention  was  not  to  give,  but  to 
loan  them ;  or  had  the  circumstances  justified  a  presumption 
on  the  part  of  the  son,  or  of  others  acquainted  with  them, 
that  a  loan,  and  not  a  gift  was  intended,  such  a  conclusion 
might  have  been  properly  come  to  by  the  court  and  jury. 
But  all  the  circumstances  detailed  in  the  evidence,  it  appears 
to  me,  justified  the  son  and  others  in  the  conclusion  that 
they  were  delivered  as  a  gift.  They  were  purchased  by  a 
father  of  ample  means,  and  placed  in  the  possession  of  his 
s  >n,  at  a  time  and  in  the  manner  fairly  entitled  to  produce 
that  impression.  That  such  would  have  been  the  unhesitat- 
ing conclusion,  had  not  the  recent  alteration  of  the  law  of 
evident*  enabled  the  plaintiff  to  testify  not  only  as  to  what 
he  did,  but  as  to  his  secret  thoughts  and  intentions,  I  think 
cannot  be  doubted.  It  was  said,  in  the  wise  of  Hick  v.  Kcuts, 
4  B.  &  O.  71,  Bug.  ?d.}  that  where  money  was  advanced  by  a 
parent  to  a  child,  the  presumption  is  that  it  was  an  advance 
by  way  of  gift,  and  not  a  loan.  And  upon  the  same  principle 
it  is  held,  that  a  purchase  of  land  in  the  name  of  a  child  is 
prima  facie  an  advancement,  and  not  a  resulting  trust.  ///// 
OH  Truxla,  97,  note  1,  and  numerous  cases  cited. 

Ordinarily,  possession  of  goods  is  the  evidence  of  owner- 
ship, and  a  delivery  completes  the  title.  To  permit  the  object 
for  which  a  delivery  was  made  to  be  judged  of,  not  by  the 
actual  circumstances  under  which  it  t<x>k  place,  but  by  the 
secret  intentions  of  the  JHTSOIIS  making  the  delivery,  would 
be  to  introduce  a  dangerous  element  of  confusion  without  any 
corresponding  l>encfit.  In  tin-  alienee  of  explicit  declaration, 
the  parties  interested,  and  those  who  are  called  uj>on  to  act 
on  or  to  determine  their  respective  rights,  are  corn  |tel  led  to 
judge  of  their  intention  by  their  acts;  and  this  necessity 
occasions  no  material  difficulty,  because  generally,  according 


NOVEMBER  TERM,  1862.  159 


Betts  v.  Francis. 


to  the  common  adage,  actions  speak  louder  than  words.  But 
what  security  can  there  be  if  actions  are  to  be  governed  by 
secret  thoughts  ?  If  actions  may  be  so  governed,  upon  the 
same  principle  words  also  may  be  rendered  wholly  unneces- 
sary and  illusory.  If  the  plaintiff  can  be  allowed  to  turn 
what  would  otherwise  be  deemed  a  gift  into  a  mere  loan  or 
bailment,  by  declaring  that  such  was  his  intention,  the  son 
may  in  the  same  way  defeat  his  acceptance.  In  my  opinion, 
both  parties  should  be  considered  as  estopped  by  their  .acts 
from  setting  up  a  mere  secret  intention;  or,  in  other  words, 
whatever  might  have  been  the  intention,  not  only  the  son, 
but  those  who  dealt  with  him,  ought  to  be  protected  in  acting 
fairly  and  bona  fide  upon  the  presumption  naturally  arising 
out  of  the  acts  themselves.  The  broad  and  just  principle 
upon  which  the  doctrine  of  estoppel  in  pais  rests  is,  that 
admissions  which  have  been  acted  upon  by  others,  whether 
they  were  made  in  express  language  or  were  implied  from 
the  open  and  general  conduct  of  the  party,  are  upon  grounds 
of  public  policy  and  good  faith,  held  to  conclude  the  party 
making  them,  so  that  he  cannot  afterwards  repudiate  them. 

In  the  cases  of  Smith  v.  Montgomery,  5  Monr.  504,  and 
Keene  v.  Jfacey,  4  Bibb  35,  it  appears  to  have  been  held 
by  the  courts  of  Kentucky,  that  where  a  father  put  his  married 
daughter  in  possession  of  slaves,  without  any  other  expres- 
sion of  his  object,  they  still  remained  his  property.  But  in 
the  state  of  North  Carolina  it  would  seem  that  precisely  the 
contrary  doctrine  has  been  established.  Hallowell  v.  Skin- 
ner, 4  Ired.  165;  Farrel  v.  Perry,  1  Hay'd  2;  Carter's 
Exrs  v.  Rutland,  Ib.  97 ;  Ford  v.  Aikin,  4  Rich.  133. 

It  is  obvious,  however,  that  a  question  of  this  kind  de- 
pends so  much  upon  the  usages  at  the  place,  and  in  reference 
to  the  kind  of  property  in  question,  that  these  decisions,  if 
they  had  coincided,  instead  of  being  directly  opposed,  would 
have  been  entitled  to  very  little  weight. 

In  my  opinion  the  rule  for  a  new  trial  should  be  made  ab- 
solute, and  the  question  of  ownership  when  the  mortgage 
•was  executed  should  be  submitted  to  a  jury  with  instructions, 


160          NEW  JERSEY  SUPREME  COURT. 


Callahan  v.  Township  of  Morris. 


that  if  the  goods  were  delivered  to  the  son,  in  the  manner  and 
under  circumstances  which  justified  him  and  others  in  the 
inference  that  they  were  meant  to  be  a  gift,  the  delivery- 
should  be  regarded  as  having  that  effect,  without  regard  to- 
what  were  the  secret  undeclared  intentions  of  the  plaintiff. 

VREDENBURGH,  J.,  concurred. 

VAN  DYKE,  J.,  concurred  in  ordering  a  new  trial. 


PATRICK  CALLAHAN  v.  THE  INHABITANTS  OF  THE  TOWN- 
SHIP OF  MORRIS. 

1.  The  township  committee  have  no  power  to  authorize  an  overseer  of 
roads  to  expend  money  for  their  repair,  so  as  to  render  the  township- 
liable  to  an  action. 

2.  Roads  must  be  opened  or  worked  for  cash  or  upon  the  credit  of  the 
overseer;   or  if  the  overseer  is  not  furnished  with    money  he  may 
warn  out  the  inhabitants  to  work  without  pay. 

8.  The  township  committee  are  authorized  to  apportion  the  money  raised 
for  road  purposes  among  the  several  districts ;  but  they  ought  not  to 
make  the  apportionment,  and  newly  assign  to  the  overseers  their  re- 
spective divisions  until  twenty  days  after  the  town  meeting;  BO  that  it 
may  be  known  what  taxpayers  have  given  notice  that  they  will  work 
out  their  road  tax. 

4,  The  committee  ought  to  keep  a  record  of  their  proceedings,  and  make 
all  their  orders  in  writing. 


This  was  a  case,  certified  from  the  Circuit  Court  of  the 
county  of  Morris,  for  an  advisory  opinion,  whether  the  charge 
of  Chief  Justice  Whelpley  stated  the  law  correctly.  The 
facts  of  the  case  sufficiently  appeal*  in  the  charge  and  the 
opinion  of  the  Supreme  Court. 

Argued  at  June  term,  1862,  before  the  CHIEF  JUSTICE, 
and  Justice**  HAIXEB,  VAN  DYKE,  and  ELMER. 


NOATEMBER  TERM,  1862.  161 

Callahan  v.  Township  of  Morris. 
'  For  the  plaintiff,  T.  Little. 

For  the  defendant,  J.  Vanatta. 

The  charge  of  the  Chief  Justice  was  as  follows: 

This  is  a  case  involving  questions  of  much  public  impor- 
tance. The  plaintiff's  action  is  brought  to  recover  of  the 
township  the  sum  of  $102,  which  he  alleges  he  has  expended 
upon  the  highway  in  road  district  No.  47,  over  which  he  was 
elected  overseer,  in  the  spring  of  1860,  by  the  inhabitants  at 
their  annual  town  meeting.  This  sum  he  claims  by  reason  of 
a  contract,  alleged  to  have  been  made  with  him  by  the  town 
committee  in  the  spring  of  that  year,  and  after  he  was  elected 
overseer.  He  alleges  that  the  committee  directed  him  to  go 
on  and  work  out  the  same  taxes  on  the  road,  as  had  been 
been  worked  out  on  it  the  previous  year.  The  common  law 
casts  upon  the  township  the  burthen  of  making  and  repairing 
its  public  highways,  as  it  does  upon  the  county  that  of  making 
and  repairing  bridges.  But  the  township  is  not  liable  civilly 
for  a  neglect  of  the  duty  to  anybody  sustaining  especial  injury 
thereby,  nor  is  a  county,  in  like  case,  for  injury  arising  from 
non-repair  of  bridges. 

The  duties  are  owing  to  the  public,  not  individuals,  and 
their  performance  is  enforced  by  indictment,  not  suit  by  indi- 
viduals. 

The  town  committees  have  no  common  law  power  to  bind 
the  townships.  Whatever  powers  they  possess  are  derived 
from  statutes.  This  case,  like  the  one  just  tried,  shows  the 
importance  of  protecting  the  people  against  their  own  servants, 
by  confining  them  within  the  strict  limits  of  the  powers  con- 
ferred by  law. 

The  modes  in  which  roads  are  to  be  made  and  repaired  are 
very  carefully  defined  by  the  act  on  that  subject.  The  town- 
ships may  do  it  either  by  hire  or  labor,  and  they  may  vote  on 
this  subject  once  in  three  years,  and  cannot  change  the  mode 
adopted  in  the  meantime. 

When  the  roads  are  maintained  by  labor,  no  specific  tax 


162          NEW  JERSEY  SUPREME  COURT. 

Callahan  v.  Township  of  Morris. 

is  assessed  for  tlic  purpose,  and  the  town  committee  is  to  assign* 
the  inhabitants  of  the  township  to  the  districts  in  equitable 
proportions,  having  regard  to  the  circumstances  of  the  inhab- 
itants and  the  quality  of  the  highways  ;  and  the  labor  of  the 
inhabitants  is  to  be  apportioned  by  the  overseer  in  proportion 
to  the  other  taxes. 

The  other  mode  is  by  hire.  The  townships  are  authorized 
by  statute  to  raise  money  by  tax  for  repairing  roads,  to  be 
voted  at  their  annual  town  meetings,  Nix.  Dig.  706,  §  22  ;* 
and  this  section  enjoins  it  on  the  township  to  be  careful  to- 
have  money  in  hand  ready  to  advance,  sufficient  for  the  objects 
and  purposes  specified  in  the  act  concerning  roads. 

The  23d  section  of  the  act  requires  the  overseers  to  account 
for  the  ex|>enditure  of  the  money  they  shall  receive  to  the 
town  committee  or  the  town  meeting,  and  to  pay  the  overplus 
to  their  successors  in  office.  If  the  township  is  fined  .on  in- 
dictment for  non-repair,  the  overseer  shall  refund  the  fine. 
This  is  to  be  done,  of  course,  from  the  money  advanced  to- 
him,  and  not  properly  expended ;  or  if  none  was  furnished^ 
then  for  neglect  to  call  out  the  inhabitants  he  is  to  pay  the- 
money. 

The  42d  section  of  the  act  requires  the  overseer,  if  the  town- 
ship neglects  or  refuses  to  raise  and  furnish  to  the  overseer 
sufficient  money,  to  maintain  the  highways  in  the  mode  pre- 
scribed for  doing  it  by  labor. 

These  sections  and  the  whole  act  show  clearly  that  the  road* 
are  to  be  worked  on  the  cash,  not  the  credit  system,  and  give 
to  the  township  officers  no  power  to  (.-ontract  for  the  repair  of 
the  highways,  on  the  credit  of  the  township.  If  that  were  the 
case,  there  would  be  no  limit  to  the  amount  of  moneys  the 
town  committee  might  authorize  expended  on  the  highways. 

If  they  may  do  it  on  credit,  it  is  equivalent  to  permitting 
them  to  lx>rrow  money  to  an  unlimited  extent. 

If  a  person  elects  to  work  out  his  tax,  the  overseer  will 
have  so  much  more  money  to  turn  over  to  his  successor  in 
office. 

•Rn.,  p.  1003,  {  39. 


NOVEMBER  TERM,  1862.  163 

Callahan  v.  Township  of  Morris. 

The  act  gives  the  overseer  no  action  against  the.  township 
for  neglecting  to  i*aise  and  furnish  the  necessary  money ;  in 
that  case  his  duty  is  plain,  to  work  the  roads  by  labor  in  the 
mode  prescribed  and  already  stated. 

Any  contract  which  the  committee  may  make  with  the 
overseer,  to  pay  him  a  certain  sum  of  money  for  his  district, 
does  not  bind  the  township,  and  no  action  can  be  maintained 
on  it  against  the  township. 

If  the  committee,  out  of  money  in  hand,  appropriate  to  an 
overseer  a  certain  sum,  and  the  treasurer  refuses  to  pay  it, 
the  remedy  against  him  or  the  committee  to  compel  its  pay- 
ment is  by  mandamus  to  the  treasurer  or  the  committee.; 
because  that  is  their  default,  not  that  of  the  township.  The 
act  never  intended  the  township  should  be  held  liable  civilly 
for  the  default  of  the  committee;  if  it  were  so,  then  every 
overseer  who  was  dissatisfied  with  the  action  of  the  committee, 
might  harass  the  township  with  suits,  and  expose  them  to  the 
payment  of  unnecessary  costs  and  expenses. 

In  this  case  the  plaintiff  has  given  no  evidence  to  the  jury, 
of  a  contract  made  by  the  committee  with  the  plaintiff,  if  it 
had  the  right  to  make  one  to  bind  the  township.  The  con- 
versation between  him  and  the  chairman  did  not  amount  to  a 
contract  or  appropriation.  It  was  not  the  act  of  the  commit- 
tee. No  vote  was  taken  upon  it.  A  resolution  to  that  effect 
has  not  been  shown  by  the  minutes  or  by  parol. 

The  act  of  the  assessor  in  filling  out  his  list  of  names  with 
the  road  taxes  did  not  bind  the  township. 

Nor  did  the  fact,  that  the  taxes  of  residents  in  his  district 
amounted  to  a  certain  sum,  give  him  any  right  to  sue  the 
township  for  that  sum,  or  any  part  of  it.  They  belonged  to 
the  township,  not  to  him. 

The  apportionment  to  the  overseer  the  previous  year  did 
not  affect  the  question,  or  give  him  a  right  to  an  equal  sum 
for  the  next  year. 

Each  committee  acts  for  the  current  year  as  well  as  eacli 
overseer.  A  new  appropriation  is  to  be  made  every  year. 

The  section  on  the  subject  of  setting  off  road  districts  only 


164         NEW  JERSEY  SUPREME  COURT. 

Callahan   v.  Township  of  Morris. 

provides  a  mode  of  determining  what  road  each  overseer  shall 
work,  and  defines  the  limits  of  his  district.  They  are  to 
remain  until  changed.  It  does  not  relate  to  the  apportionment 
of  the  money  to  be  expended  on  that  district. 

It  is  clear,  from  what  I  have  said,  and  the  provisions  of  the 
act,  that  the  law  contemplates  no  other  modes  of  working  the 
highways  than  by  money  furnished  to  the  overseer,  or  by 
labor  under  the  direction  of  the  overseer,  properly  apportioned 
among  the  inhabitants.  There  is  no  intermediate  mode  of 
doing  it  on  the  credit  of  the  township;  all  idea  of  that  kind 
is  carefully  excluded  by  the  particular  provisions  of  the  act. 

That  section  which  requires  them  to  be  worked  on  the  labor 
plan,  when  no  money  is  furnished,  settles  the  question  again>t 
the  right  to  contract  with  the  overseer. 

If,  however,  the  committee,  in  advance  of  the  assessment 
and  collection  of  the  Uix  voted,  apportion  a  particular  sum  to 
a  given  district,  and  the  overseer  chooses  to  waive  his  legal 
right  to  the  juiyment  of  the  money  in  advance  before  he 
begins  work,  and  to  advance  the  money,  he  mav  do  so;  and 
when  the  taxes  are  collected  and  received  by  the  committee  or 
their  treasurer,  he  can  call  upon  the  committee  to  make  pay- 
ment of  the  appropriation,  and  if  they  refuse  to  do  so,  he  may 
have  his  remedy  by  m<tndainus  against  the  committee  or  its 
treasurer.  They  are  the  defaulters,  and  they  must  respond  to 
the  injured  party. 

If  the  township  fail  to  furnish  any  money  to  the  overseer, 
they  cannot  be  sued  for  the  neglect;  he  must  proceed  on  the 
labor  plan.  Surely  they  cannot  be  in  a  worse  position  for  the 
default  of  their  agents  than  their  own. 

In  no  aspect  of  the  case  is  the  plaintiff*  entitled  to  recover, 
und  your  verdict  mast  IHJ  for  the  defendants. 

The  opinion  of  the  Supreme  Court  was  delivered  by 

ELMKU,  .).     The  inhabitants  of  the  several  townshi|>s  in 

this  state*  are  corporate  lxxli<*i  and  :ts  such  capable  of  suing 

und  of  being  wied.      Formerly  oor}x>ratiotu  could   only  l>e 

bound     by    a    writing    under    their   corporate   seal ;    but   in 


NOVEMBER  TERM,  1862.  165 

Callahan  v.  Township  of  Morris. 

modern  times  the  officers  and  agents  representing  these 
bodies,  and  acting  within  the  sphere  of  their  duties,  have 
power  to  bind  them,  and  to  impose  on  them  contracts  and 
obligations  which  may  be  enforced  by  actions  at  law,  as  in 
the  case  of  individuals  transacting  similar  business.  But 
whether  any  particular  officers  of  a  corporation  have  this 
power,  depends  on  the  construction  of  the  statutes  prescribing 
their  duties,  and  this  is  especially  the  case  in  regard  to  mu- 
nicipal corporations.  It  has  been  held  that  overseers  of  the 
poor  may,  in  certain  cases,  enter  into  contracts  for  which  the 
township  is  liable.  Saddle  River  v.  Coif  ax,  1  Halst.  115. 
And  the  express  terms  of  the  statute  seem  to  render  them 
liable  to  an  action  for  the  damages  assessed  upon  the  laying 
out  of  a  highway.  Nix.  Dig.  712,  §  61* 

In  the  case  of  Mendham  v.  Losey,  Penn.  347,  decided  in 
1808,  it  was  held,  by  this  court,  that  an  action  could  not  be 
maintained  against  a  township  for  money  expended  by  an 
overseer  of  the  roads,  for  their  necessary  repair.  There  was 
in  that  case,  no  allegation  that  the  township  committee  had 
in  any  way  authorized  the  expenditure ;  but  the  decision 
was  made  on  the  ground  that  the  overseer  was  not  bound, 
and  therefore  not  authorized  to  do  more  than  to  expend  such 
money,  as  he  should  be  furnished  with  for  that  purpose. 
Stress  was  properly  laid  upon  the  provision,  still  forming  a 
part  of  the  road  act,  whereby  the  townships  were  enjoined 
to  be  careful  to  have  money  in  hand,  ready  to  advance,  suffi- 
cient for  the  objects  and  purposes  specified  in  the  acts.  At 
that  time  it  was  somewhat  doubtful  whether  the  overseer 
'was  not  liable  to  punishment  for  not  keeping  the  road  in  re- 
pair, even  in  a  case  where  he  had  no  money  in  hand;  and 
no  provision  was  made  whereby  he  had  authority,  in  those 
townships  which  had  elected  to  maintain  their  highways  by 
hire,  to  call  out  the  inhabitants  and  require  them  to  work, 
however  great  the  emergency. 

The  acts  concerning  roads  were  revised  and  re-enacted  in 
1818,  and  this  new  act  was  evidently  framed,  not  to  alter  the 
-construction  of  the  old  act,  adopted  by  the  Supreme  Court, 

*Rev.,  p.  999,  \  15. 


166          NEW  JERSEY  SUPREME  COURT. 


Callahan  v.  Township  of  Morris. 


but  in  accordance  therewith,  and  to  remedy  any  inconveni- 
ence that  might  be  occasioned  thereby.  The  36th  section  of 
this  act,  retained  verbatim  as  the  42d  section  of  the  existing 
act  provides,  that  if  sufficient  money  is  not  furnished  to  the 
overseer,  then  it  shall  be,  and  is  thereby  made  his  duty  to- 
ojKin,  amend,  and  keep  the  highways  in  good  order,  in  the 
same  manner  as  is  prescribed  to  .the  overseers  of  those  town- 
ships which  elect  to  maintain  their  highways  by  labor,  that  is, 
by  warning  and  calling  out  the  inhabitants  to  work  on  thenu 
I  am  at  a  loss  to  imagine  how  the  legislature  could  have  more 
plainly  indicated  its  intention  to  deny  to  the  overseers  of  roads 
all  power  to  incur  expense,  whereby  the  township  should  be- 
come a  debtor,  and  liable  to  refund  it.  The  plain  and  obvi- 
ous purpose  of  the  act  was,  to  require  all  necessary  expendi- 
tures on  the  highways  to  be  defrayed  from  money  kept  in 
hand  for  that  object,  and  in  case  the  inhabitants  neglect  to- 
furnish  such  money,  to  subject  them  to  be  warned  out  to  work. 
By  the  12th  section  of  the  act  incorporating  townships,. 
Nix.  Dig.  835,*  the  township  committee  have  authority,  and  it 
is  made  their  duty,  "  to  suj)erintend  the  expenditure  of  any 
moneys  raised  by  tax  for  the  use  of  the  township,  or  which 
may  arise  fnun  the  balance  of  the  accounts  of  any  of  the 
towns!)  ip  officers  ;"  and  by  the  39th  section  of  the  act  con- 
cerning tuxes,  Nix.  Dig.  799,f  collectors  and  other  township 
officers  are  directed  to  pay  the  moneys  received,  to  the  said 
committee.  It  thus  becomes  the  duty  of  the  committee  to 
ap{K>rtion  the  money  raised  for  the  highways  among  the 
several  overseers,  to  l>e  expended  in  their  resj>ective  districts 
as  the  committee,  or  a  majority  thereof,  deem  ex|>edient.  As 
individual  taxpayers  have  a  right  to  work  out  their  road  tax, 
or  a  part  of  it,  on  the  highways  assigned  to  the  overseer 
within  whose  limits  they  reside,  provided  they  give  written 
notice  of  their  election  to  do  so  within  twenty  days  after  the 
order  for  raising  the  said  money  shall  be  passed,  no  proj»er 
apportionment  can  be  made  until  the  time  for  giving  such 
notices  has  elapsed.  Nor  is  there  any  authority  vested  in 


•Rev.,  p.  1195,  }  12.     ^Rev.,  p.  1146,  {  39. 


NOVEMBER  TERM,  1862.  167 

Callahan  v.  Township  of  Morris. 

the  committee,  to  divert  the  work  of  any  taxpayer  from  the 
district  in  which  he  resides,  and  assign  it  to  another.  But 
money  may  often  be  properly  apportioned  before  it  is  in  fact 
collected ;  and  although  the  overseer  is  not  bound  to  incur  the 
expense  of  opening  or  repairing  a  road  by  hire  until  lie  has 
the  money  in  hand,  yet,  if  he  thinks  proper  to  act  upon  the 
faith  of  such  an  appropriation,  he  may  do  so.  This  is  often 
done  in  many  parts  of  the  state  without  dispute  or  difficulty  ; 
and  with  a  reasonable  disposition  to  do  right,  such  a  course  is 
generally  safe  and  expedient.  There  is,  however,  not  only  no 
express  power  given  to  the  committee  to  authorize  the  expen- 
diture of  money  not  actually  voted  by  the  town  meeting,  or  to 
involve  the  township  in  any  liability  for  expenditures  on  the 
highways,  but  the  clearest  manifestation  of  an  intention  to 
prohibit  any  such  course. 

Assuming  that  the  committee  did  in  fact  apportion  to  the 
plaintiff  the  amount  of  money  he  claims  to  have  expended,  I 
am  clearly  of  opinion  that  he  cannot  enforce  his  claim  by  ac- 
tion against  the  township.  In  the  absence  of  a  right  of  action, 
the  money,  when  actually  in  hand,  may  probably  be  obtained 
by  a  mandamus,  but  as  to  this  it  is  not  necessary  now  to  ex- 
press an  opinion. 

There  was  in  this  case  no  evidence  offered  from  which  the 
jury  had  a  right  to  find  that  the  committee  did  in  fact  ever 
make  any  apportionment  of  this  money.  The  committee  i& 
not  required  to  keep  a  record  of  their  proceedings,  although  it 
is  obvious  they  ought  to  do  so ;  or  if  not,  they  should  draw 
up  their  orders  in  writing,  as  they  are  expressly  required  to  do 
when  they  assign  to  the  overseers  their  divisions  of  the  high- 
ways. There  appears  to  have  nothing  more  passed  than  loose 
conversations  between  the  plaintiff  and  the  chairman  and  other 
members  of  the  committee,  the  plaintiff  himself  testifying, 
that  he  did  not  know  of  any  resolution  or  vote  being  passed 
by  the  committee.  To  allow  such  a  proceeding  to  have  the 
force  of  a  resolution  binding  on  the  committee  or  the  town- 
ship, would  be  contrary  to  every  principle  of  evidence  and 
exceedingly  dangerous. 


168          NEW  JERSEY  SUPREME  COURT. 

Callahan  v.  Township  of  Morris. 

It  was  urged,  for  the  plaintiff,  that  the  construction  of  the 
acts  above  adopted,  conflicts  with  some  other  parts  of  the  road 
law  which  show  a  different  meaning.  It  was  said  that  the 
whole  tenor  of  the  different  provisions  of  that  law,  and  esj>e- 
cially  the  prohibition  to  expend  money  on  the  roads,  between 
the  first  of  October  and  the  first  of  April,  show  that  the 
money  ordered  to  be  raised  by  the  township  meetings  was  in- 
tended to  be  expended  during  the  current  year.  I  am  how- 
ever unable  to  discover  any  such  design.  The  positive  in- 
junction to  have  money  in  hand,  implies  that  it  was  not  ex- 
pected to  be  expended  until  collected,  which  is  seldom  if  ever 
effected  until  after  the  first  of  October.  The  act  of  1857,  3 
Atr.  Dig.  754,  §  98,*  requires  only  that  the  overseer  shall  not 
require  or  employ  any  persons  to  work  on  the  roads,  lx>tween 
the  first  of  October  and  first  of  April,  except  it  may  l>e  nec- 
essary to  make  them  passable  when  obstructed  by  snow  or 
min.  The  act  authorizing  the  town  meetings  to  vote  and 
raise  money  for  opening  and  repairing  roads,  contains  no  re- 
striction as  to  the  amount  or  the  time  of  using  it.  Difficulties 
may  sometimes  arise  in  carrying  out  the  provisions  of  the  25th 
section,  which  authorizes  taxpayers,  under  certain  circum- 
stances, to  work  out  their  road  tax;  but  these  can  be  best  ob- 
viated, by  the  committee  waiting  until  the  precise  amount 
thus  to  be  worked  out  is  ascertained  before  they  re-assign  to 
the  overseers  their  divisions,  and  apportion  to  them  the  money 
ordered  to  be  raised,  and  would  only  be  increased  by  giving 
to  the  overseer  or  the  committee  the  power  to  bind  the  town- 
ship for  the  payment  of  money  expended  on  the  roads. 

If  the  intention  was  that  the  money  ordered  to  be' raised 
should  be  expended  before  it  was  collected,  it  would  seem  to 
follow  that  the  overseer  should  be  bound  to  expend  his  pro- 
portion, whether  he  was  willing  to  do  so  or  not.  This,  how- 
ever, was  not  contended  for,  and  is  clearly  not  the  design  of 
the  law.  A  resolution  to  work  the  roads  by  hire  cannot  be 
changed  for  three  years;  this  delay  and  the  injunction  to 
ke«'p  money  on  hand,  united  with  express  authority  to  the 

•Rn.,  p.  1012,  «  94. 


NOVEMBER  TERM,  1862.  169< 

Callahan  v.  Township  of  Morris. 

overseer  to  warn  out  laborers  when  he  is  not  furnished  with 
money,  show,  I  think,  very  satisfactorily,  that  it  is  the  true 
intent  and  object  of  the  statutes,  that  money  sufficient  to 
open  and  repair  the  roads  should  be  voted  and  collected  in 
advance,  and  kept  always  on  hand,  and  that,  if  the  inhabit- 
ants neglect  to  do  this,  they  shall  be  subject  to  be  warned  out 
and  do  the  work,  as  a  part  of  the  burthens  imposed  on  them 
for  the  public  good. 

I  am  therefore  of  opinion  that  it  should  be  certified  to  the 
Circuit  Court — 

First.  That  there  was  no  evidence  tending  to  prove  the  de- 
fendants liable  to  the  plaintiif  for  the  amount  claimed,  or  any 
part  thereof,  which  should  have  been  submitted  to  the  jury. 

Second.  That  the  charge  of  the  judge  was  in  all  respects 
correct. 

The  CHIEF  JUSTICE  and  HAINES,  J.,  concurred. 

VAN  DYKE,  J.,  (dissenting).  The  plaintiif  in  this  case 
had  been  elected  an  overseer  of  the  highways  for  district 
No.  47,  in  the  township  of  Morris,  for  the  year  1860.  He 
met  the  township  committee  at  their  first  meeting  thereafter, 
and  was  directed  by  them,  or  some  of  them,  to  work  out  or 
expend  on  his  district  the  same  amount  that  had  been  ex- 
pended by  his  predecessor  the  year  before,  which  was  $132. 
He  worked  out  and  expended  accordingly  on  his  district  the 
sum  of  $102.42.  He  kept  an  account  of  this  work  and  ex- 
pense, and  in  October,  of  the  same  year,  he  rendered  his 
account  to  the  committee  of  the  township.  The  committee 
did  not  at  first,  but  afterwards  objected  to  paying  the  bill,  for 
the  reason  that  a  part  of  it  was  not  due;  but  proposed  to  pay 
a  part  of  it,  to  which  they  did  not  object.  The  bill  not  being 
paid,  the  plaintiff  brought  this  suit  against  the  township,  in 
its  corporate  capacity,  to  recover  the  claim. 

After  the  evidence  was  closed,  the  Chief  Justice  charged 
the  jury,  not  only  that  the  present  plaintiff  could  not  recover, 
but,  if  I  correctly  understand  it,  that  no  action  of  the  kind 
could  be  sustained  under  any  circumstances. 


170          NEW  JERSEY  SUPREME  COURT. 

Callahan  v.  Township  of  Morris. 

Overseers  of  the  highways  are  elected  under  the  act  incor- 
porating the  to\vnshi|)S,  and  the  legal  voters  of  the  townships 
are  by  that  act  authorized  to  vote  at  their  town  meetings,  to 
raise  such  sum  or  sums  of  money,  for  the  opening,  making, 
working,  and  repairing  of  roads,  and  keeping  them  in  repair, 
as  they  may  think   necessary;  which  money  is  to  be  raised 
by  a  tax  assessed  on  the  inhabitants  of  said  townships.     The 
township  committee  are  also  elected  under  the  provisions  of 
that  act,  and   tins  committee  is  not  made  up  of  mere  ma- 
chines, whose  every  possible  motion  is  particularly  presented, 
and  outside  of  which  they  cannot  go;  but  they  are  evidently 
intended  to  l>e  elected  at  that  time  by  the  corporators,  so  to 
speak,  as  a  kind  of  board  of  directors,  to  manage  especially 
the  financial  affairs  of  the  corporation.     They  are  authorized 
to  act  through  a  quorum,  like  most,  if  not  all  other  boards 
of  directors.     Their  election  is  provided  for  in  a  clause  of 
the  section,  apart  from  those  which  provide  for  the  election 
of  other  officers;  and  the  duty  is  imposed  upon  this  commit- 
tee, not  only  of  examining,  inspecting,  and  reporting  to  the 
town  meetings   the  accounts  and  vouchers  of  the  township 
officers,  but  also  to  superintend  the  expenditure  of  any  money 
raised  by  tax  for  the  use  of  tlie  township.     It  seems  to  me, 
therefore,  that  this  township  committee  are,  to  some  extent, 
the   legally  authorized   agents  of  the   township ;   and    when 
they  act  within,  and  not  outside  of  their  powers  and  duties, 
their  acts  will  bind  the  township,  very  much  the  same  as  the 
acts  of  other  agents,  duly  authorized,  will  bind  their  princi- 
pals. 

One  of  the  duties  ini{)osed  on  the  township  committee  is 
to  divide  the  township  into  districts,  and  to  assign  to  each 
overseer  of  the  highway*  his  particular  district,  for  the  pur- 
|>ose  of  opening,  clearing  out,  working,  amending,  and  repair- 
ing the  highways  therein,  and  these  assignments  the  resj>ect- 
ive  overseers  are  bound  to  observe  and  conform  to. 

It  is  then  made  the  duty  of  the  several  overseers  to  hire 
laborers,  horses,  plows,  wagons,  and  other  things  necessary 


NOVEMBER  TERM,  1862.  171 


Callahan  v.  Township  of  Morris. 

to  open,  clear  out,  make,  work,  amend,  and  repair  and  keep 
in  good  order  the  highways  within  their  respective  districts. 

It  is  then  declared,  in  the  next  section,  that  the  money 
necessary  to  defray  these  expenses,  shall  be  raised  in  the 
manner  prescribed  in  the  act  incorporating  the  townships 
before  referred  to,  that  is  by  a  tax,  after  a  vote  to  that  effect 
by  the  inhabitants. 

It  appears  to  me,  then,  that  when  the  townships  have  duly 
elected  their  township  committees  and  their  overseers  of  the 
highways,  and  all  are  duly  qualified  ;  and  when  they  have 
also,  by  vote,  determined  to  raise  by  tax  sufficient  money  to 
make  and  repair  the  highways  of  the  township,  and  when 
the  committee  has  duly  assigned  to  each  overseer  his  par- 
ticular district,  and  informed  him  of  the  particular  amount 
of  money  that  had  been  or  would  be  appropriated  to  his  dis- 
trict; (for  it  is  unquestionably  the  right  not  only,  but  the 
duty  of  the  committee  in  discharging  their  obligations,  to 
superintend  the  expenditure  of  money,  to  apportion  the 
amount  raised  or  ordered  to  be  raised  for  the  purpose  among 
the  different  road  districts  of  the  township,)  and  when  the 
overseer  has  gone  to  work,  as  directed  by  the  statute,  and 
hired  the  men  and  teams,  and  wagons  and  carts,  and  made, 
opened,  amended  and  repaired  the  roads  of  his  district,  and 
incurred  all  the  expense  of  it  himself,  not  exceeding  the  sum 
apportioned  to  his  district,  and  has  duly  accounted  for  such 
work  and  expenditure  of  money  to  the  committee ;  and  when 
all  other  duties  presented  by  law,  if  any,  have  been  performed, 
and  the  money  to  defray  such  expenses  has  not  within  a 
proper  time  been  paid  or  refunded  to  such  overseer,  it  appears 
to  me,  I  say,  after  all  these  things  have  been  done,  and  the 
money  has  not  been  paid  to  him,  that  the  township  itself  is 
liable  to  him  for  the  amount,  as  to  one  of  its  agents  and  serv- 
ants who  has  performed  labor  and  service  for  it,  and  expended 
money  in  its  behalf  pursuant  to  its  own  action  and  request, 
and  also  in  pursuance  of  the  law  of  the  land  ;  for  every  step 
taken  by  any  one  in  the  premises  is  just  such  step  as  the  law 
enjoins  or  recognizes. 


172  NEW  JERSEY  SUPREME  COURT. 


Callahan  v.  Township  of  Morris. 


It  was  remarked,  in  the  charge,  that  the  whole  act  shows 
clearly,  that  the  roads  are  to  be  worked  on  the  cash,  and  not 
on  the  credit  system.  So  far  as  this  part  of  the  act  is  con- 
cerned, it  seems  to  me  directly  otherwise ;  and  from  the  con- 
struction that  has  always  been  given  to  it,  the  practice  has 
been,  nearly,  if  not  quite  always,  to  the  contrary.  From  the 
nature  of  the  thing,  the  work  is  done  before  the  money  is 
raised.  So  far  as  my  observation  extends,  the  committee 
and  overseers  of  the  highways  are  always  elected  at  the 
same  town  meeting  when  the  money  is  ordered  to  be  raised. 
The  money  is  not  assessed  and  collected  till  late  in  the  sea- 
son, whereas  the  work  is  generally  done  on  the  roads  in  the 
early  part  of  it,  and  upon  the  credit  of  the  money  voted  to 
be  raised  at  the  previous  town  meeting,  when  the  overseers 
were  elected. 

Of  course  a  township  would  never  raise  money  by  tax  in 
one  year  to  pay  for  working  the  roads  the  next  year;  for  the 
voters  at  the  next  year's  town  meeting  might  vote  not  to 
work  the  roads  by  hire,  but  by  labor :  and  if  the  money  for 
that  purpose  should  be  lx>rrowed  from  some  other  source, 
with  a  view  to  have  it  ready  to  advance  to  the  overseer  to 
pay  for  the  work  before  it  is  done,  it  would  seem  to  be  going 
somewhat  on  the  credit  system ;  and  then,  too,  the  inhabit- 
ants might  decide  at  the  next  town  meeting,  that  they  did 
not  want  it  for  that  purpose,  but  would  work  the  road  by 
labor. 

A  township  newly  organized,  which  elected  its  officers  at 
their  first  town  meeting  in  the  spring,  and  at  the  same  time 
voted  to  raise  the  money  necessary  to  work  the  mads,  could 
not  possibly  raise  the  money  by  tax  to  do  so  before  the  work 
should  be  done,  unless  it  should  be  delayed  until  Dm'tnber. 

All  of  the  sections  of  the  act  touching  this  subject,  up  to 
the  37th,  go  on  the  presumption  that  the  roads  are  to  be 
worked  by  hire,  and  all  the  regulations  and  provisions  of  the 
act,  thus  far,  are  based  on  thin  assumption  ;  but  by  the  37th 
section,  the  inhabitants  of  the  township  are  authorized  to 
determine,  by  vote  at  their  annual  town  meeting,  whether 


NOVEMBER  TERM,  1862.  173 

Callahan  v.  Township  of  Morris. 

they  will  work  their  roads  by  hire  or  by  labor.  If  they  de- 
termine to  do  it  by  hire,  then  the  mode  of  doing  it  is  already 
provided  for.  If  they  decide  to  do  it  by  labor,  then  another 
mode  of  proceeding  is  to  be  adopted.  This  latter  course  the 
townships  may  take  if  they  so  determine  ;  but  if  they  do  not 
in  fact,  determine  to  pursue  that  course,  the  conclusion  of  law 
is  that  they  determine  to  work  by  hire,  unless  they  refuse  or 
omit  to  order  the  raising  of  the  money  for  that  purpose. 

If  the  township  elects  and  determines  to  work  by  hire,  but 
fails  to  raise,  or  order  raised,  the  money  with  which  to  do  it, 
in  that  case  the  overseers  are  directed  to  proceed  as  though 
the  determination  had  been  to  work  by  labor,  and  to  warn 
and  call  out  the  inhabitants  for  that  purpose.  But  this  can 
only  occur,  when  the  township  has  determined  to  work  by 
hire,  but  has  wholly  omitted  to  make  any  provision  by  vote, 
for  the  raising  of  any  money  for  that  purpose;  for  if  the 
township  votes  and  determines  to  work  the  roads  by  hire,  and 
at  the  same  meeting  votes  and  determines  to  raise  by  tax 
the  money  necessary  to  do  it  with,  the  overseer  has  then  no 
right  to  call  out  the  inhabitants,  and  make  them  liable  to 
the  penalties  of  disobedience.  He  is  then  authorized  and  re- 
quired to  consider  that  the  roads  are  to  be  worked  by  hire ; 
and  if  his  district  be  properly  assigned  to  him,  and  if  he  be 
apprized  by  the  committee  of  the  amount  of  money  tliat  will 
be  or  has  been  apportioned  to  his  district,  out  of  the  money  so 
ordered  to  be  raised  by  the  township,  he  has  a  right  to  go  on 
and  expend  that  amount  in  repairing,  &c.,  the  roads  of  his 
district;  and  if  the  amount,  not  being  above  the  proper  ap- 
portionment, be  afterwards  improperly  withheld  from  him, 
he  can,  I  think,  maintain  his  action  for  it  against  the  town- 
ship. 

It  is  said,  however,  that  the  committee  have  no  right  to 
make  such  a  contract  with  the  overseer.  They  do  not  make 
any  contract.  It  is  not  necessary  that  they  should  do  so. 
The  right  of  ^action  does  not  arise  out  of  a  contract  but  out 
of  the  law,  when  all  of  its  directions  have  been  complied 
with.  It  is  the  duty  of  the  committee  to  assign  the  districts, 

VOL.  i.  L 


174         NEW  JERSEY  SUPREME  COURT. 

Callahan  v.  Tqwnsliip  of  Morris. 

and,  I  think,  to  apportion  the  money  properly  to  or  among 
them.  It  is  not  necessary  that  they  should  go  any  further, 
unless  it  be  simply  to  apprize  the  overseers  of  these  facts.  If 
the  township  did  not  vote  to  raise  the  money  for  this  purpose, 
no  contract  by  the  committee  in  the  case  could  make  it  liable. 
This  the  overseer  is  bound  to  know,  for  he  knows,  or  is  bound 
to  know,  that  if  the  township  does  not  make  provision  for  the 
raising  of  the  money,  he  cannot  undertake  to  work  the  roads 
by  hire,  for  in  that  case  his  duty  is  to  take  the  other  course, 
and  call  out  the  inhabitants. 

It  is  also  said  that  the  proper  remedy  in  this  case,  if  one 
exists,  is  by  mandamus  against  the  committee  or  its  treas- 
urer for  not  paying  over  the  money.  I  am  aware  that  this 
mandamus  proceeding  has  become  quite  a  favorite  one  of 
late.  I  recollect  that  it  was  used  in  one  ease  as  a  substitute 
for  the  action  of  ejectment,  and  iu  these  days  of  non-impris- 
onment and  family  exemptions,  and  debts  and  difficulties 
in  collecting,  I  should  not  wonder  if  it  should  l>e  generally 
resorted  to  for  the  collection  of  bad  debts.  To  collect  a  debt 
would  certainly  be  its  character,  if  used  in  a  case  like  this. 
Be  that  as  it  may,  I  certainly  think  it  should  not  be  resorted 
to  in  cases  like  the  present;  for,  in  the  first  place,  here  is  a 
dispute,  a-s  there  may  be  in  every  such  case,  as  to  what 
amount  is  actually  due,  which  is  not  proj>erly  the  office  of 
a  mandamus  to  determine.  And  then  it  may  be,  that  an 
overseer  may  be  deprived  of  his  money,  without  any  fault  on 
the  part  of  the  committee  or  their  treasurer.  The  committee 
do  not  raise  the  money  when  ordered  to  be  raised  by  the 
township;  this  is  done  by  other  agents  of  the  township,  over 
whom  the  committee  have  no  control. 

If  the  proceeding  by  iwimlamiis  m'njld  lie  in  such  ease,  it 
is  not  a  proceeding  of  right  but  of  dvwrdion  ;  and  while  a 
party  might  reasonably  calculate  on  what  the  law  would  do 
for  him,  he  might  be  quite  at  a  loss  to  tell  where  the  discretion 
of  a  court  might  land  him. 

Again,  while  a  mandduiu*  might  have  the  effect  to  punish, 
some  delinquent  official,  it  might  be  wholly  powerless  in  get- 


NOVEMBER  TERM,  1862.  175 

Callahan  v.  Township  of  Morris. 

ting  for  the  plaintiff  his  money.  He  should  not  therefore  be 
shut  up  to  a  remedy  like  this. 

If  it  be  admitted  that  a  mandamiLS  might  be  used  in  such 
•cases  against  the  agents,  I  do  not  see  how  it  can,  nor  why  it 
should,  deprive  the  party  from  his  usual  remedy  against  the 
principals  for  work  and  labor  which  he  has  performed,  and 
money  which  he  has  paid  out  for  them,  according  to  their 
different  votes,  and  in  strict  pursuance  of  the  law,  as  one  of 
their  appointed  and  lawful  servants. 

The  evidence  in  the  case  before  us,  is  not  as  full  and  clear 
as  it  might  have  been  perhaps;  but  I  think  that  certain  facts 
may  be  considered  as  either  admitted,  or  so  far  proved  as 
that  the  jury  should  have  passed  upon  them. 

1.  That  the  township  committee  as  well  as  the  plaintiff, 
had  been  duly  elected  at  the  town  meeting  next  preceding 
the  doing  of  the  work,  and  had  entered  on  the  duties  of  their 
respective  offices,  and  that  at  the    same  town    meeting,  the 
voters  duly  voted  to  raise  money  to  work  and  repair  the  roads. 

2.  That  the  plaintiff's  district  had  been  duly  assigned  to 
him  by  the  committee. 

3.  That  the  cotnmittee  had  determined  that  a  portion  of 
the  money  so  ordered  to  be  raised  Avas  to  be  appropriated  to 
the  plaintiff's  district,  and  so  informed  him. 

4.  That  he  accordingly  went  to  work,  and   expended  on 
the  roads  of  his  district  the  amount  named,  or  some  part  of  it. 

These  facts  show  that  the  plaintiff  was  entitled  to  recover 
something,  and  the  jury  should  have  been  permitted  to  ascer- 
tain what  it  was. 

Our  roads  are  badly  enough  worked  now;  but  if  every 
overseer  is  to  understand,  that  unless  he  gets  his  pay  in  ad- 
vance he  can  never  recover  it,  except  from  some  delinquent 
agent,  by  a  proceeding  which  he  has  never  before  heard  of, 
we  shall  be  far  worse  off  than  we  are  now. 

I  think,  therefore,  that  the  Circuit  Court  of  the  county  of 
Morris  should  be  advised  to  set  this  verdict  aside,  and  grant 
a  new  trial. 

The  charge  of  the  CHIEF  JUSTICE  sustained. 


176          NEW  JERSEY  SUPREME  COURT. 


State  r.  Council  of  Elizabeth. 


THE  STATE,  MOSES  M.  WOODRUFF.  PROSECUTOR,  v.  THE 
CITY  COUNCIL  OF  ELIZABETH. 

Where  a  city  charter  authorizes  street  improvements  to  be  made,  or  work 
done,  only  on  the  application  in  writing  to  the  council,  of  a  majority 
of  the  resident  owners  of  property  lying  along  such  street,  it  should 
appear  in  the  return  to  the  certioruri  bringing  up  for  review  the  pro- 
ceedings of  the  city  council,  that  the  application  is  signed  by  a  ma- 
jority of  the  resident  owners;  the  burthen  of  proof  is  on  the  defend- 
ant, and  such  fact,  being  a  jurisdictional  one,  must  appear  on  the  face 
of  their  proceedings. 


On  certioran.     In  the  matter  of  lading  out  a  public  street 
in  the  city  of  Elizabeth. 

For  the  prosecutor,  B.  Williamson. 


The  opinion  of  the  court  was  delivered  by 

BROWN,  J.  This  certiorari  brings  up  for  review  the  pro- 
ceedings of  the  city  council  of  Elizabeth  in  the  laying  out  of 
a  street  extending  Grand  street.  The  first  reason  assigned 
for  setting  aside  the  proceedings  is,  that  there  was  no  peti- 
tion for  the  road  such  as  the  charter  required,  to  which  the 
defendant  in  oeriioran  replies,  that  no  petition  was  required 
by  the  charter. 

It  is  enacted,  by  the  second  section  of  a  supplement  to  the 
charter,  passed  March  15th,  1869,  that  the  city  council  may 
lay  out  and  open  any  stiver,  road,  highway,  alley,  or  park, 
in  any  part  of  the  city,  and  cause  to  be  vacated  any  already 
laid  out  or  to  be  hereafter  laid  out,  and  cause  to  be  graded, 
gravelled,  paved,  or  macadamized,  and  cause  to  l>e  constructed 
sewers  or  drains,  &c.  In  case  lands  are  taken,  compensation 
is  to  be  made  to  the  owners,  and  in  case  of  improvements, 
the  exjicnseM  are  to  l>e  paid  l»y  the  owners.  To  this  section 
there  is  a  proviso,  that  all  or  any  of  the  aforesaid  improve- 
ments shall  be  made  or  work  done,  only  on  the  application  in« 


NOVEMBER  TERM,  1862.  177 


State  v.  Council  of  Elizabeth. 


writing,  to  said  council,  of  a  majority  of  the  resident  owners 
of  property  lying  along  any  street  or  streets,  or  sections 
thereof,  on  which  such  improvement  is  to  be  made  or  work 
done.  It  is  argued,  that  the  word  improvement  does  not  in- 
clude a  street  to  be  opened ;  that  the  proviso  refers  only  to 
improvements  on  a  street  already  made.  There  is  much  plaus- 
ibility, and  perhaps  good  sense,  in  this  verbal  criticism  of 
the  statute,  but  it  is  not  alsvays  by  verbal  criticism,  that  the 
true  meaning  of  a  statute  and  the  true  intent  of  the  legisla- 
ture can  be  reached.  The  question  is,  whether  the  legisla- 
ture intended  that  streets  could  only  be  sewered,  graded,  and 
gravelled  or  paved,  on  the  application  of  a  majority  of  the 
resident  owners,  but  could  be  laid  out  anywhere  in  the  city, 
'(excepting  through  burial  grounds,  excluded  in  another  pro- 
viso,) or  vacated  anywhere,  against  the  protest  of  all  the 
owners  on  each  side  of  it.  Such  a  construction  should  be 
not  merely  probable  but  necessary.  One  of  the  highest  mu- 
nicipal powers  is  the  taking  lands  for  highways  against  the 
consent  of  the  owners.  The  -legislature  should  not  be  taken 
to  intend  it,  when  lesser  power  can  only'  be  exercised  with 
their  consent,  or  the  consent  of  a  majority  of  them,  unless 
the  act  admits  of  no  other  reasonable  construction.  Upon 
the  first  reading  of  this  proviso,  "that  all  or  any  of  the 
aforesaid  improvements  shall  be  made  only,"  &c.,  the  impres- 
sion made  upon  the  reader  is  certainly,  that  the  whole  of  the 
powers  given  over  streets  are  referred  to ;  and  when  the 
attention  is  directed  to  the  alternative  words,  "or  work 
done,"  the  impression  grows  stronger.  The  doubt  is  raised 
only  when  it  is  suggested,  that  no  improvement  can  be  made 
on  a  street,  or  work  done  on  a  street,  until  it  has  become  a 
street;  and  yet,  notwithstanding  the  difficulty  of  interpreta- 
tion arising  from  these  words,  the  first  impression  of  the 
intent  of  the  law  will  remain  unshaken.  The  proviso  says 
"  all"  and  every  reason  for  the  rule,  applicable  to  one  kind  of 
improvement  or  work  applies  to  all.  I  have  no  difficulty  in 
reading  this  proviso  as  applicable  not  only  to  work  to  be  done 
io  streets  actually  laid  out,  but  to  those  which  are  proposed 


178          NEW  JERSEY  SUPREME  COURT. 

State  v.  Council  of  Elizabeth. 

to  be  laid  out;  and  am  strengthened  in  so  doing  by  the  next 
proviso,  in  the  same  section,  which  is,  "  that  bef'oiv  the  council 
shall  determine  that  such  improvement  is  to  be  made,  or  work 
done,  they  shall  give  notice,  &c.,  briefly  describing  such  work, 
road,  alley,  park,  or  improvement."  Such  improvement,  in 
this,  refers  to  the  previous  proviso,  and  means  the  same  tiling 
in  both.  In  the  latter,  by  the  description  to  be  given  in  the 
notice,  it  appears  that  it  may  l>e  a  work,  a  road,  an  alley,  a 
park,  or  an  improvement.  It  is  not  here  improvement  to  a 
road,  or  on  a  road,  but  road  or  improvement,  of  which  notice 
is  to  be  given. 

The  defect  in  the  petition  relied  upon  is,  that  but  one  of 
the  owners  of  the  land  in  the  route  of  the  road  has  signed  it, 
when  the  proviso  requires  that  a  majority  of  such  owners 
should  apply.  To  this  it  is  answered,  that  the  act  requires 
only  a  majority  of  the  resident  owners,  and  that  it  does  not 
appear  that  there  is  more  than  one  resident  owner. 

The  reply  assumes  that  the  burthen  of  proof  is  upon  the 
prosecutor.  This  is  a  mistake.  Inferior  jurisdictions  h:ive 
upon  them  the  burthen  of  showing  their  acts  to  be  within 
the  authority  granted  to  them.  What  are  called  jurisdic- 
tional  facts  must  appear  on  the  face  of  their  proceedings  or 
Otherwise.  It  does  not  apjn-ar  that  there  is  but  one  resident 
land  owner  in  the  route  of  this  road.  The  contrary  appeai-s 
from  the  report  of  the  s|>ecial  committee,  to  whom  was  re- 
ferred the  matter  of  opening  the  street.  They  rejK)rt  that 
they  are  unable  to  agree  with  all  the  owners  of  pro|x»rtv 
lying  along  said  improvement :  one  of  the  owners,  Mr. 
Green,  being  a  non-resident,  and  another,  Doct.  Woodruff', 
l>eing  absent  from  the  city.  Doct.  Woodruff,  ii  seems 
from  this,  is  a  resident,  and  he  did  not  sign  the  petition. 
The  petition  is  signed  by  nineteen  |>ersons,  and  the  street 
committee  report,  that  a  majority  of  the  resident  owners 
lying  along  the  proposed  improvement  have  |>etitioncd. 
This  cannot  l>e  true  if  D<»ct.  Woodruff  is  a  resident  owner, 
and  Mr.  Green  the  only  non-resident  owner,  a*  seems  to  be 
the  fact  from  the  report  of  the  special  committee.  This  in- 


NOVEMBER  TERM,  1862.  179 

Ordinary  v.  Cooley. 

consistency  should  be  explained  by  the  council,  otherwise  the 
facts  stated  in  the  proceedings  must  be  taken  most  strongly 
against  their  jurisdiction.  The  explanation  is  found  in  the 
brief  of  their  counsel.  Eighteen  of  the  petitioners  own  prop- 
erty along  Grand  street,  but  not  upon  the  proposed  extension 
of  it.  It  is  contended  that  these  eighteen  are  owners  along 
the  line  of  the  improvement;  but  this  is  not  so.  Grand 
street  now  terminates  at  Chilton  street,  and  the  new  street 
begins  there.  The  improvement  extends  Grand  street,  but 
Grand  street  is  not  a  part  of  the  improvement. 

The  prosecutor  is  right  in  his  position,  that  the  petition  is 
not  so  signed  as  to  give  the  council  jurisdiction,  and  for  this 
reason  the  proceedings  should  be  set  aside.  It  is  not  there- 
fore necessary  to  examine  the  other  reasons  assigned. 

Proceedings  set  aside. 


THE  ORDINARY  v.  JOHN  B.  COOLEY  ET  AL. 

1.  A  bond,  by  an  executor  or  administrator,  to  the  Ordinary  of  the  state, 
which  varies  from  the  form  prescribed  by  the  statute,  if  voluntarily 
given,  and  not  made  void  by  statute,  is  good. 

2.  When,  by  the  condition  of  such  bond,  the  executor  or  administrator 
is  required  to  render  a  just  and  true  account  concerning  the  sale,  an 
assignment  of  a  breach  of  such  condition,  that  he  had  not  rendered 
a  just  and  true  account  of  his  administration  of  the  moneys  arising 
from  the  sale,  is  bad  on  demurrer. 


Ill  debt  on  administration  bond.     Demurrer  to  declaration. 
For  the  plaintiff,  A.  G.  Rickey  and  A.  Wurts. 
For  the  defendants,  G.  A.  Allen  and  M .  Beasley. 

The  opinion  of  the  court  was  delivered  by  the 

CHIEF  JUSTICE.     The  condition  of  the  bond  declared  on 

is,  that  whereas  John  B.  Cooley,  administrator  of  the  estate 

of  Samuel  Cooley,   deceased,   by  an   order  of  the  Orphans 

Court  of  the  county  of  Hunterdon,  held  on  the  16th  day  of 


180          NEW  JERSEY  SUPREME  COURT. 


Ordinary  v.  Cooley. 


November  last,  was  directed  to  sell  the  real  estate  of  the  said 
Samuel  Cooley,  deceased;  if  the  said  John  B.  Cooley  shall 
comply  with  the  said  order  agreeably  to  law  concerning  the 
same,  and  shall  render  a  just  and  true  account  concerning 
the  same,  then  the  obligation  to  be  void,  otherwise  to  remain 
in  full  force  and  virtue. 

The  breach  assigned  is,  that  Cooley,  on  the  3d  day  of  Feb- 
ruary, 1858,  did  sell  the  real  estate,  and  received  therefor 
§1790.10,  yet  that  he  hath  not  complied  with  the  order 
according  to  law,  and  that  he  did  not  well  and  truly  admin- 
ister the  moneys,  which  arose  from  the  sales  of  the  land  by 
virtue  of  said  order,  and  that  he  did  not  and  hath  not  ren- 
dered a  just  and  true  account  concerning  the  same  of  his  said 
administration,  within  the  time  required  by  law;  and  the 
surplus  money  which  was  found  remaining  upon  the  account 
of  the  said  John  B.  Cooley,  administrator  as  aforesaid,  (the 
same  having  been  first  allowed  by  the  Prerogative  Court  of 
the  state  of  New  Jersey)  he  did  not  and  hath  not  distributed 
and  paid,  unto  such  persons  as  were  and  are  by  law  entitled 
to  receive  the  same,  but  hath,  &c. 

To  this  declaration  there  is  a  general  demurrer. 

It  is  insisted  that  the  bond  is  void,  l>ecause  it  does  not 
conform  to  the  statute  (Nic.  Dig.  763,  §  22,*)  which  requires 
the  condition  of  the  bond  to  be  in  form  following  :  The  con- 
dition of  this  obligation  is  such,  that  if  the  above  bound  A. 
B.  (executor,  &c.,  administrator,  &e.,)  shall  well  and  truly 
administer  the  moneys  arising  from  the  sale  of  any  lands, 
tenements,  or  real  estate  of  the  said  C.  I).,  directed  by  the 
•  •rder  of  the  Orphans  Court  of  the  county  of  M.  to  be  sold 
according  to  law ;  and  further,  do  make,  or  cause  to  be  made, 
a  ju*t  and  true  account  of  his  administration  within  twelve 
months  from  the  date  of  the  above  obligation,  and  the  sur- 
plus of  money  which  shall  be  found  remaining  upon  the 
account  of  such  sale  or  sales  (the  same  being  first  examined 
and  allowed  of  by  the  judges  of  I  lie  Orphans  Court  of  the 
county,  or  other  competent  authority,)  shall  distribute  and 

•Bee.,  p.  7GK,  {  75. 


NOVEMBER  TERM,  1862.  181 

Ordinary  v.  Cooley. 

pay  unto  such  person  or  persons,  respectively,  as  is,  are,  or 
shall  be  by  law  entitled  to  receive  the  same,  then,  &c. 

It  is  certainly  true  that  the  bond  altogether  varies  from  the 
form  prescribed;  nevertheless  it  appears,  by  the  record,  to 
have  been  voluntarily  given,  and  is  not  made  void  by  statute. 
Such  bonds  have  been  uniformly  held  good  in  this  court  when 
they  require  nothing  more  than  the  law  requires.  Woolwich 
v.  Forrest,  Penn.  115;  The  Mayor,  &G.,  of  Hoboken  v.  Har- 
rison and  others,  ante  73. 

The  remaining  question  is,  whether  there  is  a  good  assign- 
ment of  breaches. 

It  was  urged  that  there  was  but  one  assignment  of  breaches, 
to  wit,  that  he  had  not  complied  with  the  order  of  the  Or- 
phans Court,  according  to  law ;  that  what  appear  to  be  two 
breaches  are  but  in  fact  specifications  under  this  one. 

I  do  not  so  regard  them.  What  immediately  follows  is 
doubtless  a  specification  under  the  last  sentence  of  noncorn- 
pliance  with  the  order.  The  other  is  an  independent  breach. 
The  first  is  no  breach  of  the  condition  requiring  the  adminis- 
trator to  comply  with  the  order  of  the  court  agreeably  to  law ; 
that  does  not  require  him  well  and  truly  to  administer,  &c., 
the  moneys  received  from  the  sale.  The  declaration  states 
expressly  that  he  did  sell.  That  is  a  full  compliance  with  the 
order  to  sell  agreeably  to  law ;  nothing  but  that  is  required 
by  the  first  branch  of  the  condition. 

The  second  branch  of  the  condition  requires  the  adminis- 
trator to  render  a  just  and  true  account  concerning  the  same. 
Concerning  the  same  means  undoubtedly  concerning  the  sale. 
He  is  to  render  before  the  proper  tribunal  a  just  and  true 
account  concerning  the  sale.  When  that  account  is  to  be 
rendered,  does  not  appear  by  the  condition.  The  law  re- 
quires such  an  account  to  be  rendered  at  the  next  term  after 
sale. 

There  is  no  breach  assigned  of  the  condition  to  render  a 
just  and  true  account  concerning  the  same. 

The  one  assigned  is,  that  he  did  not  render  a  just  and  true 
account  concerning  the  same  of  his  administration.  Pie 


182          NEW  JERSEY  SUPREME  COURT. 

Yawger  v.  Manning. 

agreed  to  render  an  account  concerning  the  sale.  The  com- 
plaint is,  that  he  did  not  render  a  true  account  of  his  admin- 
istration of  the  moneys  arising  from  the  sale. 

An  assignment  that  he  had  not  rendered  a  just  and  true 
account  concerning  the  sale  within  the  time  required  by  law 
would  have  been  good.  But  the  pleader  was  not  content  with 
that;  he  coupled  to  the  account  required  by  the  condition  one 
not  required  by  it,  and  so  vitiated  his  whole  breach.  An  as- 
signment charging  that  he  did  not  do  what  the  bond  did  not 
require  Is  manifestly  bad. 

This  is  an  action  to  charge  sureties,  and  not  the  adminis- 
trator only,  and  is  upon  a  liond  entirely  variant  from  the 
form  prescribed,  which  has  been  held  to  be  good  only  be- 
cause it  was  voluntary.  We  have  no  right,  under  such  cir- 
cumstances, to  say  that  the  parties  meant  a  bond  with  the 
statutory  condition ;  the  presumption  is  directly  the  other 
way. 

To  extend  such  a  condition  by  a  violent  construction  would 
not  only  be  illegal,  but  grossly  unjust. 

The  bond  is  to  have  just  such  a  construction,  and  none 
other,  as  if  the  .statute  had  prescribed  no  form,  and  the  par- 
ties had  invented  their  own  security.  That  is  precisely  what 
they  have  done. 

Judgment  for  the  defendants. 


PETER  YAWGER  v.  JAMES  MANNING  AND  OTHERS. 

1.  In  an  action  of  trespass  in  a  justice's  court,  a  plea  that  there  waft  it 
road  acrom  the  lociu  in  yw>,  to  which  the  defendant*  hud  a  title  in 
common  with  all  other  citizens  of  this  Mat- ,  and  thai  they  entered 
within  the  limit*  of  thU  rood,  in  not  a  plea  of  title  to  any  real  estaio. 
Such  plea  means  nothing  more  than  that  the  defendants  li.nl  right,  in 
common  with  all  citizens,  to  a  road  aorosa  the  locvt  in  <j\u>,  whicli  i* 
merely  a  right  of  highway. 

2.  The  defendants  tendering  the  plea  an  a  plea  of  title,  are  not  thereby 


NOVEMBER  TERM,  1862.  183- 

Yawger  v.  Manning. 

estopped  from  denying  that  it  was  such  plea,  unless  on  the  ground  of 
wilful  misrepresentation  by  defendants,  on  which  the  plaintiff  was  in- 
duced to  act  to  his  injury. 

In  trespass.     On  motion  to  strike  out  pleas. 
For  the  plaintiff,  J.  N.  Vborhees. 
Tor  the  defendants,  J.  T.  Bird. 

The  opinion  of  the  court  was  delivered  by 

BROWN,  J.  This  action  was  commenced  before  a  justice 
of  the  peace.  The  defendants  pleaded  that  there  was  a  read 
across  the  locus  in  quo,  to  which  they  had  a  title  in  common 
with  all  other  citizens  of  this  state,  and  that  they  entered 
within  the  limits  of  this  road.  The  defendants  also  gave  a 
title  bond,  as  required  by  the  statute,  and  thereupon  the 
plaintiff  brought  suit  in  this  court.  The  defendants  have 
pleaded  here — 1st,  the  general  issue;  2d,  that  there  was  a 
common  highway  over  said  close,  and  that  the  defendants,, 
having  occasion  to  use  the  highway,  entered  on  the  same, 
and  filled  up  the  ditch,  which  was  an  obstruction  to  its  use; 
3d,  that  Manning,  one  of  the  defendants,  was  an  overseer  of 
the  highways,  and  that  this  part  of  the  highway  over  the 
close  in  question  was  lawfully  assigned  to  him ;  and  that  he 
and  the  other  defendants,  by  his  order,  entered  to  repair  and 
remove  obstructions  from  the  same,  and  to  that  end  neces- 
sarily did  the  acts  complained  of.  These  pleas  are  not  pleas 
of  title.  The  questions  arising  upon  them  could  have  been 
tried  before  the  justice.  A  right  to  use  a  highway  is  not  a 
title  to  real  estate. 

The  plaintiff  moves  to  strike  them  out,  because  he  con- 
tends the  defendants,  having  pleaded  title  below,  are  bound 
to  plead  title  here,  pursuant  to  the  40th  section  of  the  act 
constituting  courts  for  the  trial  of  small  causes,  and  the  effect 
given  to  that  and  the  two  succeeding  sections  by  this  court. 
The  language  of  the  40th  section  is,  "  that  when,  in  any  action 
brought  by  virtue  of  this  act,  the  defendant  shall,  as  a  justi- 


184          NEW  JERSEY  SUPREME  COURT. 

Yawgerv.  Manning. 

fieation,  plead  title  to  any  real  estate  in  himself,  or  another 
under  whom  he  acted  or  entered,  such  defendant  shall  com- 
mit such  plea  to  writing,  &c.,  and  thereupon  it  shall  be  lawful 
for  the  plaintiff  to  commence  his  action  in  this  court,  and  re- 
cover costs,"  &c. 

The  success  of  the  plaintiff's  motion  depends  upon  the 
question,  whether  the  defendants  did  plead  title  in  the 
justice's  court  to  any  real  estate.  It  is  only  wJien  that  occurs 
that  the  sections  of  the  small  cause  act  and  the  decisions  of 
this  court  upon  the  effect  of  them,  referred  to  above,  are 
brought  into  action.  The  plea  is,  that  there  was  a  road 
over  and  across  the  close  mentioned  and  described  in  the 
plaintiff's  state  of  demand,  to  which  these  defendants  had  a 
title  in  common  with  all  other  citizens  in  this  state,  and  that 
they  entered  within  its  limits,  &c.,  as  they  lawfully  might,  &c. 

If  this  meant  that  the  defendants  had  a  right  of  way  over 
the  close  by  grant,  or  twenty  veal's'  adverse  use  of  it,  it  would 
be  a  plea  of  title.  1  Harr.  R.  226,  Randolph  v.  Mmtifort. 
A  right  of  way  is  real  estate,  an  incorjxn-eal  hereditament. 
But  this  plea  cannot  l>e  understood  as  meaning  such  a  right: 
they  allege  it  to  l>e  a  title  to  a  road.  This,  by  itself,  might 
leave  a  doubt.  The  construction  in  favor  of  its  l>eing  a  plea  of 
title  should  be  taken  most  strongly  against  the  pleader.  If 
it  be  not  such,  he  has  misled  the  justice  and  the  plaintiff. 
But  when  the  pleader  adds  the  words,  in  common  with  all 
the  other  citizens  of  this  state,  he  excludes  the  idea  of  its 
being  a  way  originating  by  grant,  or  use,  or  any  estate  or 
individual  right.  Taking  the  whole  together,  it  means  no 
more  than  a  right,  in  common  with  all  citizens  of  the  state, 
to  a  road  across  the  locus  in  yuo,  and  this  is  nothing  less  or 
more  than  a  right  of  highway.  It  was  suggested,  upon  the 
argument,  that  the  defendants  were  estopj>ed  to  deny  that 
their  pl<ai  was  a  plea  of  title  by  their  action  in  the  justice's 
court,  in  tendering  the  plea  as  such,  ami  giving  Ixmd  wiling 
that  they  had  pleaded  title  to  the  land  sis  a  justification. 

In  an  action  on  the  bond,  the  defendants  would  !><•  estop- 
!><•<!  to  deny  the  facts  recited  in  it;  but  the  recital,  l>esides 


NOVEMBER  TERM,  1862.  185 


State  v.  Johnson. 


stating  the  fact  of  a  plea  of  title,  shows  also  what  the  plea, 
was,  so  that  the  bond  proves  no  more  than  the  plea.  Ten- 
dering the  plea  as  a  plea  of  title  if  an  estoppel,  must  be  such 
in  pais,  and  on  the  ground  of  wilful  misrepresentation  by  de- 
fendants, on  which  plaintiff  was  induced  to  act  to  his  injury. 
There  is  no  evidence  of  wilful  misconduct.  So  far  as  appears, 
the  taking  this  plea  as  a  plea  of  title  was  a  mistake  of  law  by 
the  plaintiff,  as  well  as  the  defendants  and  the  justice. 

Motion  denied* 

CITED  in  KuU  v.  Mayor  of  Jersey  City,  8  C.  E.  Gr.  87. 


THE  STATE  v.  JOEL  M.  JOHNSON. 

1.  On  an  indictment  for  rape,  the  defendant  may  be  convicted  of  an  as- 
sault, and  found  not  guilty  of  the  rape. 

2.  Under  the  laws  of  this  state,  a  party  indicted  for  a  crime  may  be  con- 
victed of  any  offence  of  a  lower  degree,  provided  such  lower  offence 
is  included  within  the  description  in  the  indictment,  without  regard  to 
the  question  whether  it  was  or  was  not  technically  a  felony. 


On  indictment  for  rape. 

The  defendant  having  been  indicted  in  the  Oyer  and  Ter- 
miner  of  the  county  of  Passaic,  and  on  the  trial  acquitted  of 
rape,  and  convicted  of  an  assault,  the  question  was  reserved 
for  the  advisory  opinion  of  this  court,  whether  judgment 
could  be  entered  on  the  verdict. 

For  the  state,  H.  A.  Williams. 

For  the  defendant,  J.  8.  Barkalow  and  8.  Tuttle. 

CHIEF  JUSTICE.  At  the  Oyer,  the  defendant  was  convicted 
of  an  assault  upon  an  indictment  for  rape,  and  found  not 
guilty  of  the  rape. 

The  question  was  reserved  to  be  argued  at  bar  whether 
such  a  conviction  was  lawful.  The  case  was  argued  at  the 


186          NEW  JERSEY  SUPREME  COURT. 

State  v.  Johnson. 

last  term  of  the  court,  and  the  Oyer  advised  to  proceed  to 
judgment. 

We  think  the  conviction  was  proper.  The  indictment 
charged  an  assault  in  due  form. 

The  general  rule  seems  well  settled,  that  it  is  not  necessary 
to  prove  all  the  allegations  of  an  indictment,  where  the  evi- 
dence makes  out  a  substantive  offence  of  a  lesser  grade ;  that 
the  defendant  may  be  convicted  of  that,  if  charged  in  the  in- 
dictment, although  as  an  ingredient  in  the  greater  offence. 
Arch.  Crun.  PL  106 ;  Wfiart.  O.  Law  226 ;  1  Greerd.  on  Ev., 
§  680 ;  1  Chitty's  O.  Law  637. 

Upon  an  indictment  for  burglariously  stealing,  the  prisoner 
may  be  convicted  of  the  theft,  and  acquitted  of  the  nocturnal 
entry.  1  Leach  36,  88 ;  2  East's  P.  C.  516  ;  1  Hale  559. 

On  an  indictment  for  murder,  the  defendant  may  be  con- 
victed of  manslaughter.  Co.  Litt.  282,  a;  2  Hale  302 ;  Bar- 
ley's case,  Cro.  Eliz.  296. 

On  an  indictment  for  grand  larceny,  there  may  be  a  con- 
viction for  petit  larceny.  2  Hale  302 ;  People  v.  White,  22 
Wend.  176 ;  People  v.  Jackson,  2  Hitt  92. 

The  doctrine  has  been  uniformly  held  by  the  English  courts, 
where  the  crime  proved  has  been  of  the  same  general  charac- 
ter as  that  charged.  It  was  said  that  an  indictment  for  a  fel- 
ony would  not  support  a  conviction  for  a  misdemeanor.  1 
Arch.  Or.  Pr.  166;  2  Stra.  1133;  1  LeacJi  12. 

The  only  reason  given  for  this  exception  was,  that  on  an 
indictment  for  a  felony,  the  prisoner  would  not  have  the  IKMI- 
efit  of  a  copy  of  the  indictment,  a  special  jury,  and  of  making 
full  defence  by  counsel.  Stra.  Rep.  1137;  Cro.  Car.  332;  1 
Hawk.,  b.  2,  c.  47,  96. 

By  statute  7  Wm.  4,  and  1  Viet.  c.  85,  §  11,  the  law  is  al- 
tered so  that,  on  the  trial  of  an  indictment  for  any  felony 
which  includes  an  assault,  the  jury  may  convict  of  an  assault 
only. 

There  are  many  conclusive  reasons  why  this  conviction 
should  l>e  sustained. 

The  original  rule,  that  felony  and  misdemeanor  amid  not 


NOVEMBER  TERM,  1862.  187 

State  v.  Johnson. 

be  joined,  had  its  origin  in  the  diversity  of  the  mode  of  pro- 
ceeding in  the  two  cases,  giving  greater  privileges  on  the  trial 
for  the  lesser  offence.  That  is  not  the  case  under  our  law, 
but  the  reverse. 

By  our  statute,  the  offence  of  rape  at  common  law  is  not  a 
felony,  but  a  high  misdemeanor.  Nix.  Dig.  162,  §  10.* 

The  technical  reason  for  the  non-joinder  of  rape  and  assault 
is  thus  removed. 

The  interests  of  public  justice  require  that  when  an  offence, 
clearly  and  distinctly  charged  in  an  indictment,  is  made  out 
by  the  evidence,  that  the  defendant  should  not,  for  a  purely 
artificial  reason  having  now  no  foundation  except  in  obsolete 
and  repealed  laws,  be  acquitted. 

When  the  offence  is  charged  and  proved,  there  can  be  no 
surprise  upon  the  defendant,  and  instead  of  losing  his  privi- 
leges by  a  trial  for  the  minor  offence,  they  are  enlarged  upon 
an  indictment  for  the  minor  offence,  or  at  least  remain  the  same. 

The  has  been  some  contrariety  of  decision  on  this  point  in 
the  courts  of  this  country.  It  is  not  necessary  to  review  the 
cases.  They  cannot  be  reconciled.  We  are  at  liberty  to  adopt 
a  convenient  rule  of  practice  on  this  subject;  one  which  will 
best  promote  the  public  good,  and  at  the  same  time  deprive 
parties  indicted  of  no  substantial  right. 

The  rule  enunciated  in  the  New  York  cases  cited  is  conve- 
nient, and  violates  no  rule  of  our  criminal  law. 

ELMER,  J.  Notwithstanding  the  general  doctrine  of  the 
common  law,  that  upon  an  indictment  charging  a  felony  the 
defendant  could  not  be  convicted  of  a  misdemeanor,  it  is 
-doubtful  whether  this  rule  was  applied  to  the  case  of  rape. 
Harman  v.  Comm.,  12  Serg.  &  R.  71 ;  Cook  v.  State,  4  Zab. 
486  ;  Rex  v.  Dawson,  3  Stark.  62. 

However  this  may  have  been,  I  am  satisfied  that,  under 
the  existing  statutes  and  practice  in  New  Jersey,  a  party  in- 
dicted for  a  cfkne  may  be  convicted  of  any  offence  of  a  lower 
degree,  provided  such  lower  offence  is  included  within  the 

*jRe».,p.  241,  {5  80. 


188          NEW  JERSEY  SUPREME  COURT. 


Tflfer  v.  Northern  Railroad  Co. 


description  in  the  indictment,  without  regard  to  the  question 
whether  it  is  or  is  not  technically  a  felony.  Our  statutes  de- 
scribe crimes  of  all  descriptions  as  high  misdemeanors,  or 
misdemeanors  only,  many  of  the  latter  being  of  the  class  of 
felonies.  The  use  of  the  word  felony,  indeed,  seems  to  be 
.studiously  avoided.  Peremptory  challenges  are  allowed  only 
in  certain  enumerated  cases,  and  the  mode  of  trial  is  substan- 
tially the  same  in  all.  The  court  will  undoubtedly  exercise  a 
discretion,  governed  very  much  by  the  nature  of  the  offence, 
in  regard  to  the  personal  appearance  of  the  defendant  and  his 
committal  into  actual  custody  during  the  progress  of  the  trial ; 
and  it  may  be  that  in  determining  what  are  still  offences  of  an 
indictable  nature  at  common  law,  and  the  power  of  arrest, 
regard  must  be  had  to  the  common  law  distinction  between 
felonies  and  misdemeanors ;  but  so  far  as  the  trial  is  con- 
cerned, there  is  no  longer  any  reason  for  it.  The  ancient  rules 
in  regard  to  trials,  even  in  capital  cases,  have  been  modified 
in  this  state,  so  that  now  the  prisoner  is  allowed  to  appear  and 
plead  by  attorney,  and  he  is  allowed  to  be  fully  defended  by 
counsel  in  all  cases.  Donnelly  v.  State,  2  Dutclier  468.  I  am 
therefore  of  opinion  that  judgment  should  l>e  rendered  for  the 

state. 

Judgment  for  the  state. 


DAVID  TELFER,  ADMINISTRATOR  OF  DAVID  TELFER,  JR., 
y.  THE  NORTHERN  RAILROAD  CX3MPANY. 

1.  When  a  railroad  company  is  sued  for  damages  sustained  by  a  collision 
on  their  road,  induced  by   the  negligence  of  the  company  or  their 
agent*,  and  it  appears  that  the  party  injured  was  himself  guilty  of  such 
negligence  or  want  of  reasonable  care  as  contributed  to  the  doing  of 
the  injury,  there  can  be  no  recovery. 

2.  "  In  crowing  ordinary  roads,  caution  and  care  are  chiefly  demanded 
to  avoid  running  against  or  over  any  Uxly  else  ;  in  crossing  railroads 
it  in  exacted  to  avoid  being  nin  over  yourself.     In  the  former  case  thu 
blame  attache*  prima  facie  to  the  party  doing  the  injury  ;  in  the  latter, 
it  attache*,  in  the  first  instance,  to  the  party  obstructing  the  track."- 
Per  VAN  DYKE,  J. 


NOVEMBER  TERM,  1862.  189 

Telfer  v.  Northern  Railroad  Co. 

3.  In  an  action  under  the  statute  to  recover  damages  for  death  caused  by 
negligence,  only  the  pecuniary  loss  or  injury  sustained  by  the  plaintiff 
can  be  allowed ;  and  in  estimating  that,  the  chances  of  health  and  life 
are  to  be  considered  in  connection  with  the  value  of  services. 

4.  The  reciprocal  duties  of  railway  companies  and  persons  crossing  their 
roads  discussed. 


This  suit  was  brought  by  the  plaintiff,  as  administrator  of 
his  son,  David  Telfer,  jun.,  against  the  defendants,  under  the 
act  of  March  3d,  1848,  for  the  recovery  of  damages  sus- 
tained by  the  death  of  his  son,  which  was  occasioned,  as  he 
alleged,  by  the  wrongful  act,  neglect,  or  default  of  the  de- 
fendants. 

The  plaintiff  declared,  in  substance,  that  on  the  10th  De- 
cember, 1859,  defendants  were  owners  of  a  railroad,  extend- 
ing from  the  New  York  line,  in  Bergen  county,  to  Jersey 
City,  in  the  county  of  Hudson,  which  crossed  several  high- 
ways in  the  county  of  Bergen,  and  that  it  crossed  a  certain 
highway  in  North  Bergen,  where  the  old  Secaucus  road  and 
the  New  York  and  Paterson  plank  road  form  a  junction  ; 
that  the  crossing  at  this  point  was  dangerous,  as  persons 
going  in  a  westerly  direction  along  the  Secaucus  road,  in 
approaching  the  railroad  track,  were  prevented  from  seeing 
it  on  account  of  certain,  houses  and  outhouses  there  situate, 
and  by  reason  of  a  curve  in  the  Secaucus  road  near  that 
point ;  that  the  approach  to  said  track,  on  the  Secaucus  road, 
by  passengers,  carriages,  &c.,  could  only  have  been  rendered 
safe  and  prudent  by  the  defendants  providing  flagmen,  or 
other  servants,  to  be  stationed  at  the  railroad  crossing  to 
give  warning  to  persons  approaching  or  passing  thereon,  and 
by  defendants  approaching  to  it  slowly  and  with  caution,  and 
by  ringing  a  bell  or  sounding  a  whistle ;  that  on  that  day 
the  said  David  Telfer,  jun.,  was  riding  in  a  wagon  on  the 
old  Secaucus  road,  and  approaching  said  crossing,  and  there 
got  upon  the  track  of  the  railroad  at  the  junction  and  cross- 
ing aforesaid, "as  he  lawfully  might  and  without  any  negli- 
gence on  his  part,  when  the  defendants,  with  their  engines, 
cars,  &c.,  propelled  by  steam,  approached  and  came  upon  the 

VOL.  i.  M 


190          NEW  JERSEY  SUPREME  COURT. 

Telfer  v.  Northern  Railroad  Co. 

said  crossing  with  reckless  speed,  at  the  rate  of  fifty  miles  an 
hour,  without  having  any  flagmen  or  servants  to  warn  persons 
of  their  approach,  and  without  ringing  any  bell  or  blowing 
any  whistle,  by  reason  of  all  which  the  wagon  of  the  said 
David  Telfer,  jun.,  was  struck  and  crushed,  and  the  said 
David  Telfer,  jun.,  so  injured  that  he  died  ;  that  plaintiff  was 
obliged  to  expend  large  sums  of  money  for  his  burial,  and  as 
father  and  next  of  kin  of  the  said  David  Telfer,  jun.,  sus- 
tained great  loss  and  damage,  to  the  sum  of  §10,000  in  all  ; 
whereby,  and  by  force  of  the  statute  in  such  case  provided, 
an  action  has  accrued  to  him,  as  administrator  as  aforesaid, 
for  the  exclusive  benefit  of  the  plaintiff,  who  is  next  of  kin 
to  said  deceased,  to  demand  and  have,  &c. 

A  suit  was  also  brought  for  loss  sustained  by  the  death  of 
William  Telfer,  another  son  of  the  plaintiff,  at  the  same  time, 
in  which  a  like  declaration  was  filed.  Issue  was  joined  by 
the  defendants  in  l>oth  cases,  and  they  were,  by  consent,  tried 
together  at  the  Hudson  Circuit,  when  the  jury  rendered  a 
verdict  for  the  plaintiff  in  both  cases,  assessing  damages  in 
one  case  at  $936,  and  in  the  other  at  §1056. 

A  rule  was  obtained  by  the  defendants,  on  the  coming  in 
of  the  postea,  that  the  plaintiff  show  cause  why  the  verdict 
should  not  IMJ  set  aside,  and  a  new  trial  granted. 

The  principal  reasons  relied  on  were  —  1st,  that  the  evidence 
did  not  show  any  wrongful  act  or  negligence  of  the  defendants, 
aud  that  it  did  show  a  want  of  care  on  the  part  of  the  j>ersons 
who  were  killed  by  the  collision  ;  2d,  that  if  the  plaintiff  was 
entitled  to  recover,  the  damages  given  by  the  jury  were  ex- 
cessive. 

So  much  of  the  evidence  as  is  necessary  to  a  clear  under- 
standing of  the  cases  is  detailed  in  the  opinions  delivered 


For  the  rule,  A.  0.  Z 

Contra,  F.  H.  Ogdcn  and  /.  W.  Scudder. 

CHIEF  JUSTICE.     The  plaintiff's  two  sons  were  killed  by 


NOVEMBER  TERM,  1862.  191 

Telfer  v.  Northern  Railroad  Co. 

a  collision  between  the  wagon  which  they  were  driving  and 
the  cars  of  the  defendants,  at  a  crossing  of  their  railroad  and 
the  Secaucus  road.  The  wagon  was  overturned,  and  they 
thrown  out  violently,  injuring  them  so  seriously  that  in  a 
short  time  they  both  died. 

These  actions  were  for  negligence  of  the  agents  of  the  de- 
fendants in  the  charge  of  the  train,  in  consequence  of  which 
it  is  alleged  the  collision  occurred,  to  recover  damages  for 
the  pecuniary  loss  sustained  by  the  father  in  the  death  of  his 
sons. 

At  the  trial,  the  right  to  recover  was  rested  on  various 
grounds. 

1.  That  the  speed  of  the  train  was  unlawful  as  well  as  un- 
usual. 

2.  That  the  crossing  was  so  dangerous  as  to  require  a  flag- 
man, and  that  none  had  been  provided. 

3.  That  with  proper  care  on  the  part  of  the  defendants,  the 
collision  might  have  been  avoided. 

4.  That  the  collision  was  caused  by  the  neglect  of  the  en- 
gineer to  blow  the  whistle  or  ring  the  bell,  as  required  by  law. 

The  defendants,  while  denying  these  alleged  neglects,  in- 
sisted that  the  negligence  of  the  boys  contributed  to  produce 
the  collision,  if  it  was  not  the  sole  cause  of  it. 

The  verdict  was  for  the  plaintiff  in  each  case,  and  gave  for 
the  death  of  David  $936,  of  William  $1056. 

The  defendants  ask  to  have  the  verdicts  set  aside  and  new 
trials. 

1.  Because  the  verdicts  are  excessive  in  amount. 

2.  Because  they  ought  to  have  been  for   the   defendants 
upon  the  evidence. 

The  verdicts  cannot  be  supported  upon  the  evidence  upon 
any  point  in  the  case. 

The  speed  of  the  train  at  the  time  of  the  collision  was 
neither  extraordinary  nor  unlawful.  It  could  not  have  ex- 
ceeded twenty  miles  an  hour. 

I  agree  to  the  judge's  charge,  that  the  jury  could  not  law- 
fully rest  a  verdict  for  the  plaintiff  on  that  ground. 


192          NEW  JERSEY  SUPREME  COURT. 


Telfcr  v.  Northern  Railroad  Co. 


Although  the  question,  whether  the  speed  was  excessive, 
was  one  of  fact  for  the  jury,  yet  they  could  not  arbitrarily 
declare  it  so.  No  witness  testified  that  the  sj>eed  of  the  train 
was  excessive;  that  it  was  unsafe  to  run  at  that  speed. 

The  legislature  have  not  seen  fit  to  limit  the  speed  of  loco- 
motives, and  trains  drawn  by  them,  while  expressly  author- 
izing their  use.  I  know  of  no  limit  to  the  speed  which  they 
are  entitled  to  make,  except  that  fixed  by  a  careful  regard  to 
the  safety  of  the  trains  and  the  passengers  conveyed  by 
them.  The  public  interest  requires  in  this  mode  of  trans- 
portation the  maintenance  of  a  high  speed,  and  the  legisla- 
ture have  expressly  sanctioned  it  by  authorizing  the  use  of 
engines,  whose  object  we  all  know  is  to  attain  and  preserve 
this  high  speed. 

To  hold  that  railway  trains  must  run  at  such  rates  as  to 
enable  them  to  avoid  collisions,  by  stopping  the  trains  at  the 
approach  of  ordinary  vehicles  to  crossings,  would  deprive 
them  of  that  upon  which  their  usefulness  and  value  almost 
entirely  depend — their  power  almost  to  annihilate  time  and 
space  by  their  rapid  movements. 

Until  the  legislature  or  some  lawful  municipal  authority 
prescribes  a  contrary  rule,  locomotive  engines  may  run  upon 
the  track,  at  such  rate  of  speed  as  the  exigencies  of  railroad 
companies  require,  and  may  preserve  this  speed  at  the  usual 
crossings,  notwithstanding  the  approach  of  other  vehicles  to 
the  crossing  upon  the  common  highway  ;  and  under  ordinary 
circumstances,  it  will  not  be  considered  either  gross  or  ordi- 
nary negligence,  or  what  is  called  want  of  ordinary  <we. 

To  this  general  rule  there  may  be  many  exceptions.  If 
the  engineer,  when  approaching  a  crossing,  should  perceive 
upon  the  railroad  track  a  flock  of  cattle  crossing,  or  a  single 
carriage  even,  he  would  be  required,  in  the  exercise  of  ordi- 
nary care,  to  do  all  in  his  j>ower  to  avoid  a  collision;  and 
failing  to  do  so,  the  company  would  be  liable  for  the  conse- 
quences of  his  negligence. 

So  it  would  doubtless  be  held  want  of  ordinary  care  to 
drive  a  locomotive  across  the  streets  of  a  populous  town  or 


NOVEMBER  TERM,  1862.  193 


Telfer  v.  Northern  Railroad  Co. 


'neighborhood  at  a  rate  of  speed  perfectly  justifiable  when 
passing  over  an  ordinary  highway  running  through  a  sparsely 
settled  neighborhood. 

The  care  to  be  used  in  avoiding  collisions  with  ordinary 
vehicles  upon  the  public  highways,  must  be  in  proportion  to 
the  danger  incident  to  the  particular  locality.  The  nature  of 
this  locality  will  presently  be  seen.  Nor  did  the  evidence 
justify  a  verdict  founded  upon  a  failure  to  provide  a  flagman 
-at  the  crossing. 

The  opinion  of  unskilled  witnesses,  unsupported  by  suffi- 
•cient  reasons  of  the  necessity  of  a  flagman  at  this  crossing, 
was  not  sufficient  to  support  the  verdicts.  Whether  there 
was  such  necessity  or  not,  although  a  proper  matter  for  the 
decision  of  the  jury,  yet  if  the  jury  found  a  verdict  without 
evidence  on  this  point,  or  against  the  evidence,  it  should  not 
be  permitted  to  stand.  The  place  was  a  very  sparsely  popu- 
lated neighborhood,  but  few  dwellings,  not  half  a  dozen,  near 
the  crossing.  It  was  of  so  little  importance  as  not  to  be  a 
regular  stopping  place,  only  a  flag  station. 

At  the  crossing,  the  railroad  and  the  common  road  were 
about  the  same  grade.  The  railroad  did  not  at  this  point 
suddenly  emerge  from  a  deep  cut,  so  as  to  cut  off  a  view  of 
the  cars  until  the  wagon  was  upon  the  track. 

The  approaching  train  could  be  seen  for  half  a  mile  upon 
the  track  before  reaching  the  crossing. 

At  a  point  one  hundred  and  seventy  feet  from  the  track, 
on  the  road  down  which  the  boys  were  coming,  the  approach- 
ing train  could  be  seen  when  at  a  distance  of  two  hundred 
and  sixty  feet. 

There  were  here  no  trains  playing  back  and  forth,  as  is 
the  case  near  stations  in  cities  and  towns,  calculated  to  deceive 
the  boys  when  approaching.  The  only  source  of  danger  was 
the  regular  and  occasional  trains  of  the  company,  which  upon 
tli is  road  were  infrequent.  The  hotel  of  McCollum  was  the 
only  considerable  building  near. 

There  was  no  evidence  that  the  number  of  passengers 
along  the  highway  was  so  great  at  this  point  as  to  render  a 


194         NEW  JERSEY  SUPREME  COURT. 

Telfer  v.  Northern  Railroad  Co. 

flagman  necessary,  as  in  the  crowded  streets  of  a  city  where 
the  passing  must  be  constant,  and  it  would  he  highly  incon- 
venient for  each  carriage  to  come  to  a  stand,  to  see  whether 
trains  were  approaching. 

No  municipal  or  legislative  requirement  rendered  it  ob- 
ligatory upon  the  company  to  have  a  flagman  there.  In  the 
absence  of  such  requirement,  it  should  have  appeared  that 
there  was  something  to  distinguish  this  from  ordinary  cross- 
ings, some  peculiarity  in  the  character  of  the  ground,  whu-h 
so  plainly  indicated  the  necessity  of  a  flagman  as  to  leave  no 
doubt  of  the  obligation  of  the  company  to  put  one  there.  The 
oompany  should  not  have  been  held  liable  on  this  ground, 
unless  for  the  neglect  of  a  very  manifest  duty ;  one  which 
the  company  could  not  have  failed  to  perceive  without  great 
carelessness. 

There  is  no  pretence  that  such  was  the  case  there.  To  sus- 
tain a  verdict  upon  such  evidence  to  make  out  the  necessity 
of  gates  or  a  flag,  would  impose  upon  every  railroad  com- 
pany the  necessity  of  keeping  flagmen  or  gate's  at  almost 
every  crossing,  and  almost  amount  to  a  prohibition  of  suck 
roads  as  that  of  the  defendants,  sustained  by  a  very  limited 
number  of  passengers. 

The  topography  of  the  place  clearly  shows  that  person* 
about  to  cross  may,  with  ordinary  care,  always  ascertain  when 
a  train  is  approaching,  and  thus  avoid  a  collision. 

Whether  the  whistle  was  blown  or  bell  rung  upon  the 
approaching  engine,  is  immaterial,  if  the  boy.s  knew,  or  with 
ordinary  caution  might  have  known  in  time  to  avoid  the  colli- 
sion, that  the  train  was  approaching;  but  if  it  were  material, 
I  think  the  decided  weight  of  the  evidence,  indeed  all  the. 
reliable  evidence  in  the  cause,  shows  that  the  whistle  \va» 
blown  and  bell  rung  :is  required. 

The  negative  testimony  of  the  occupants  of  the  bar-room 
at  the  time  of  the  accident,  that  they  did  not  hear  it,  is  not 
entitled  to  much  weight ;  accustomed  as  they  were  to  the 
sound,  it  would  be  strange  if  they  recollected  hearing  it. 


NOVEMBER  TERM,  1862.  195 

Telfer  v.  Northern  Railroad  Co. 

The  testimony  of  one  credible  witness,  that  he  did  hear  it,  is 
far  more  reliable,  and  should  outweigh  theirs. 

Nor  does  the  evidence  show  any  ground  for  the  conclusion 
that  there  was  a  neglect  of  proper  means  to  avoid  the  collision, 
as  soon  as  its  danger  became  apparent..  Every  means  was 
taken  to  arrest  the  progress  of  the  train,  when  the  engineer 
saw  the  attempt  to  cross  in  front  of  it. 

Where  common  highways  and  railroads  intersect,  the 
trains  have  the  right  of  way,  as  against  ordinary  carriages ; 
it  is  the  duty  of  the  latter  to  keep  out  of  the  way  of  the 
former. 

Although  the  engineer  saw  the  boys  approaching  the  cross- 
ing, while  yet  at  such  a  distance  as  not  to  indicate  their  igno- 
rance of  the  coming  train,  it  was  his  right  to  suppose  they  did 
not  mean  to  attempt  to  cross  before  the  train  ;  and  if  he  acted 
upon  that  impression,  it  was  not  negligence  or  want  of  ordinary 
caution  on  his  part,  although  the  supposition  proved  to  be 
groundless. 

The  evidence  shows  that  everything  was  done  to  arrest  the 
train  as  soon  as  a  collision  seemed  probable.  The  brakes 
were  applied,  and  the  engine  reversed,  but  it  was  too  late. 
The  collision  took  place,  and  the  boys  were  killed. 

It  was  not  pretended,  at  the  trial  or  here,  that  the  train 
might  have  been  stopped  sooner,  so  as  to  avoid  the  collision, 
or  that  the  failure  to  do  so  arose  from  the  want  of  proper 
brakes,  or  men  to  use  them. 

Assuming,  therefore,  the  right  of  the  train  to  pass  that 
crossing  at  its  usual  speed,  or  any  speed  safe  for  itself  when 
there  seemed  to  be  no  danger  of  a  collision,  I  cannot  see  of 
what  negligence  the  persons  in  charge  were  guilty.  There 
was  no  want  of  caution  on  the  part  of  the  conductor,  no  reck- 
lessness of  danger.  The  train  was,  both  before  and  after  it 
was  perceived  the  boys  intended  to  cross  in  front  of  it,  man- 
aged with  care  and  judgment  by  all  concerned.  They  did 
everything  incumbent  upon  them,  and  omitted  no  precaution 
to  avoid  the  accident. 

Their  conduct  was  not  the  cause  of  the  accident,  and  did 


196          NEW  JERSEY  SUPREME  COURT. 


Tolfer  v.  Northern  Railroad  Co. 


not  even  contribute  to  produce  it.  It  was  undoubtedly 
caused  by  the  uiiex|>ected  conduct  of  the  boys  in  attempting 
to  cross  in  front,  and  because  their  intention  to  do  so  was  not 
manifest  until  too  late  to  stop  the  train,  and  let  them  pass. 
But  I  think  the  evidence  was  almost  conclusive,  either  that 
the  boys  drove  upon  the  crossing  after  they  saw  the  approach- 
ing train,  or  might,  with  ordinary  care  and  prudence,  have 
Been  it.  The  evidence  on  this  point  is  both  positive  as  well  as 
circumstantial. 

The  accident  occurred  aboujt  the  usual  time  for  the  passage 
of  the  cars,  a  few  minutes  later,  in  broad  daylight,  at  ten 
o'clock  in  the  forenoon.  The  boys  knew  this  to  be  the  usual 
time  to  expect  them;  they  passed  there  almost  every  day; 
they  should  have  been  on  the  lookout.  They  were  thoroughly 
conversant  with  the  topography  of  the  place;  they  must  have 
known  how  far  the  cars  could  be  seen,  and  what  obstacles 
were  in  the  way.  They  either  did  not  stop  to  listen,  or  if 
they  did,  heard  the  train,  and  drove  on.  Many  others  farther 
off  than  they,  whose  opportunities  were  not  so  good  as  theirs, 
heard  it;  if  they  did  not,  it  was  their  own  fault.  If  they 
did  stop,  as  almost  all  the  witnesses  say  they  did,  al>out  forty 
feet  from  the  track,  and  if  they  were,  as  the  testimony  shows, 
seen  by  those  upon  the  train,  they  must  have  seen  it,  and 
should  have  waited  until  it  passed. 

The  collision  was  seen,  or  the  boys  and  their  wagon,  just 
before  it  occurred,  by  Van  Orden,  the  engineer,  PatersOn,  the 
conductor,  Mr.  Westervelt,  a  passenger,  and  Dennis  C'onnel 
and  Cookson,  brakernen,  also  by  John  Kunz,  who  lived  near 
by,  and  says  he  saw  the  lx>ys  pass  his  house  in  the  wagon 
ju-t  In-fore  the  accident  occurred,  all  witnesses  for  the  defend- 
ant; and  Jane  Smith,  a  witness  for  the  plaintiff,  who  saw  the 
occurrence  from  her  house,  eight  hundred  or  nine  hundred 
feet  from  the  crossing. 

Van  Orden  says  :  I  saw  this  wagon  Ixjfore  the  boys  were 
stru«-k  ;  when  I  first  saw  them  we  were  about  half  a  mile 
from  the  station  ;  that  he  saw  the  wagon  coming  down  past 
the  hotel — the  train  was  then  going  sixteen  or  eighteen  miles 


NOVEMBER  TERM,  1862.  197 


Telfer  v.  Northern  Railroad  Co. 


an  hour ;  that  he  blew  the  whistle  at  the  usual  place ;  that 
about  three  hundred  yards  from  the  station  he  blew  on  the 
brakes  to  decrease  the  speed  of  the  train,  and  immediately 
blew  them  off  again ;  when  he  did  so,  the  boys  stood  in  the 
little  hollow  near  the  track — the  horse  was  standing  still ; 
that  one  of  the  boys  looked  out ;  that  the  middle  curtain  of 
the  wagon  was  up  on  the  south  side ;  that  the  boy  was  driving, 
and  looked  out  toward  the  train;  that  he  got  a  signal  from 
the  conductor  that  there  were  no  passengers  to  land,  and  then 
let  on  steam — -just  then  the  wagon  started  ahead ;  that  he 
blew  the  brakes  on  and  reversed  the  engine,  but  the  collision 
took  place.  He  further  said,  that  when  the  horse  started,  he 
made  a  move  as  if  hit  with  a  whip. 

Paterson,  the  conductor,  says :  that  on  that  day,  when  he 
came  to  the  door  of  the  baggage  car,  in  which  he  was  while 
the  train  was  passing  through  a  clump  of  trees,  sixteen  hun- 
dred and  sixty-one  feet  from  the  crossing,  the  whistle  was 
blowing;  that  he  swung  his  body  out  towards  the  platform  as 
usual — when  he  looked,  he  saw  the  wagon  standing;  that  it 
attracted  his  attention;  that  the  curtain  was  up,  and  the  boy 
he  saw  looked  out  towards  the  train  ;  that  he  had  something 
in  his  hands;  the  horse  was  standing.  He  gave  the  engineer 
the  signal,  no  passengers,  and  the  brakes  were  let  off;  when 
the  train  got  to  the  barrack  the  horse  started,  the  boy  who  was 
driving  reached  forward  over  the  dash-board,  and  raised  the 
lines  or  a  whip — the  horse  was  galloping;  that  after  the  boys 
started,  the  signal  to  apply  the  brakes  was  given  very  loud  and 
very  quick  in  succession. 

Westervelt,  the  passenger,  says :  going  through  the  woods, 
he  heard  the  whistle,  an  alarm  whistle ;  stepped  out  on  the 
platform  of  the  first  passenger  car,  and  looked  ahead ;  saw 
a  horse  and  wagon  standing  from  the  track  some  distance  on 
the  right  hand  side  of  the  track  on  the  plank  road;  they 
were  not  moving  at  all  when  he  saw  them ;  he  saw  one  person 
in  the  wagon  'who  was  looking  out  forward  ;  he  saw  the 
wagon  standing  there,  and  he  supposed  everything  was 


198          NEW  JERSEY  SUPREME  COURT. 

Telfer  v.  Northern  Railroad  Co. 

right ;  he  then  stepped  in,  and  heard  nothing  more  until  he 
heard  the  lx>ys  were  hurt. 

Connel,  the  brakeman,  says:  he  saw  the  wagon  moving  down 
towards  the  track,  just  coming  to  a  stop — this  was  when  he 
put  the  brakes  on;  coming  through  the  clump  of  trees,  lie  got 
a  signal  to  let  go,  and  as  he  did  so  he  got  a  signal  to  put  them 
on,  and  did  so. 

Cookson's  testimony  is  substantially  the  same:  he  saw  a 
wagon  near  the  track  coming  to  a  stop  ;  looked  out  after 
putting  on  the  brake*;  saw  the  horse  approaching  the  track  ; 
the  horse  started,  and  was  going  across  as  if  he  had  been 
whipped  or  got  scared ;  one  of  the  boys  was  leaning  over  the 
dash-board. 

Paterson,  the  conductor,  says :  that  one  of  the  l>oys,  after 
the  accident,  at  McCollum'g,  where  he  was  carried,  was  asked 
by  him  if  he  saw  the  train,  and  answered  yes ;  that  he  asked 
him  why  he  tried  to  get  across,  and  the  boy  answered  he 
thought  lie  could  get  across.  Cookson  testifies  to  the  same 
thing.  Although  this  testimony  was  seriously  controverted, 
I  think  it  is  not  without  the  bounds  of  possibility,  as  well  as 
probability;  yet  I  have  formed  my  opinion  of  the  case,  laying 
it  out  of  view. 

Jane  Smith,  called  for  the  plaintiff,  saw  the  accident  from 
her  house,  seven  or  eight  hundred  feet  distant;  the  wagon 
was  going  from  her;  she  says  she  saw  the  boys  pass  the  Mc- 
Collum  house,  and  that  they  did  not  stop  before  they  Mere 
struck;  she  first  saw  them  near  the  sign  post — she  then 
heard  the  train.  It  is  not  remarkable  that  at  that  distance 
she  did  not  see  the  wagon,  going  from  her,  stop.  We  see, 
however,  that  even  she  heard  the  train  coming  while  the 
boys  were  in  a  place  of  safety. 

This  is  the  rabttanoe  of  the  evidence  on  this  im|w>rlant 
point,  and  it  demonstrates  that  the  boys  saw  or  heard  the 
column  train  in  season  to  avoid  the  collision  ;  that  tlu-y  (flopped 
a  short  distance  from  the  track ;  that,  seeing  them  stop, 
the  engineer  went  on,  sup(>osing  they  were  going  to  stand 


NOVEMBER  TERM,  1862.  199- 


Telfer  v.  Northern  "Railroad  Co. 


still ;  that,  intending  to  cross  in  advance  of  the  engine,  they 
suddenly  started,  or  the  horse  became  unmanageable. 

In  either  event  the  defendants  are  not  liable,  if  it  was  im- 
possible, at  that  time,  to  stop  the  train  soon  enough  to  avoid 
a  collision;  they  are  not  liable  either  for.  an  accident  in  part 
produced  by  the  wilfulness  of  the  boys,  or  for  an  accident 
caused  by  the  fright  of  the  horse. 

By  this  evidence,  the  case  is  brought  within  the  rule  laid 
down  in  the  cases  of  Moore  v.  The  Central  Railroad  Com- 
pany, 4  Zab.  268,  853 ;  Runyon  v.  The  Central  Railroad 
Company,  1  Dutcher  556,  that  where  the  party  injured,  either 
by  his  conduct  or  want  of  care,  contributes  to  the  production 
of  the  injury  complained  of  he  cannot  recover. 

The  damages  were  excessive.  The  jury  allowed  for  the 
loss  of  the  services  of  the  boys  more  than  by  any  calculation 
they  can  be  shown  to  have  been  worth  to  the  father,  con- 
sidering the  period  of  service  which  yet  remained,  and  his 
duty  as  a  parent  towards  them,  and  their  liability  to  sick- 
ness and  death.  For  David's  services  they  gave  $936 ;  he 

had  about  years  to  serve   his    father.     For  William's,. 

they  gave  $1056 ;  he  had  about  seven  years  yet  to  serve  his 
father. 

The  common  law  gives  no  action  to  a  father  sustaining 
such  an  injury.  The  action  is  given  by  statute.  Nix.  Dig. 
193.  The  language  of  the  act  upon  the  subject  of  the  dam- 
ages is,  "  the  jury  may  give  such  damages  as  they  shall  deem, 
fair  and  just  with  reference  to  the  pecuniary  injury  resulting 
to  the  wife  and  next  of  kin  of  such  deceased  person." 

It  is  manifest,  from  the  structure  of  this  section,  that  it 
was  not  designed  to  vest  an  arbitrary  discretion  in  the  jury, 
to  give  what  damages  they  may  think  fair  and  just,  without 
reference  to  any  fixed  standard  by  which  to  estimate  them. 
The  important  qualifying  words  are  added,  referring  to  the 
pecuniary  injury  resulting  to  the  widow  or  next  of  kin.  The 
injury  forming  the  basis  of  calculation  must  be  pecuniary — 
nothing  else  can  enter  into  the  estimate.  There  can  be  no 
recovery  for  loss  of  society  or  wounded  feelings,  or  anything 


200          NEW  JERSEY  SUPREME  COURT. 

Telfer  v.  Northern  Railroad  Co. 

else  which  cannot  be  measured  by  money  and  satisfied  by  a 
pecuniary  recomj>ense. 

The  third  section  of  the  act  makes  it  the  duty  of  the  plain- 
tiff, to  give  a  bill  of  the  particulars  of  the  nature  of  the  claim, 
in  respect  of  which  damages  shall  be  sought  to  be  recovered. 
This  does  not  refer  to  the  circumstances  attending  the  death  ; 
that  is  not  what  is  to  be  called  for  and  given ;  the  declara- 
tion gives  that ;  but  it  is  to  be  a  statement  of  the  particulars 
of  the  i>ecuniary  loss  sustained.  The  object  of  this  provision 
is  to  enable  the  defendant  to  know  in  what  way  the  damages 
are  to  be  estimated,  so  that  we  may  come  prepared  to  meet 
that  part  of  the  case. 

Some  limitation  was  imperatively  required,  by  obvious  con- 
siderations, upon  the  amount  to  l>e  recovered. 

The  legislature  of  New  York,  in  1847,  passed  an  act  of 
this  character,  and  in  1849  limited  the  sum  to  be  recovered 
under  it  to  $5000. 

In  Quin  \.  Moore,  15  New  York  Rep.  434,  which  was  an 
action  under  the  Xew  York  act  containing  the  same  provision 
as  ours  in  resj>ect  to  damages,  the  court  say:  "The  theory 
of  the  statute  is,  that  the  next  of  kin  have  a  pecuniary  in- 
terest in  the  life  of  the  person  killed,  and  the  value  of  this 
interest  is  the  amount  for  which  the  jury  are  to  give  their 
verdict."  Neither  the  personal  wrong  or  outrage  to  the  de- 
cedent, nor  the  pain  and  suffering  he  may  have  endured,  are 
to  be  taken  into  the  account. 

The  English  act,  9  and  10  T7c/.,  c.  93,  contains  a  provision, 
that  the  jury  may  give  Mich  damages  as  they  may  think  pro- 
portioned to  the  injury  resulting  from  such  death  to  the 
parties,  respectively,  for  whom  and  for  whose  benefit  such 
action  shall  be  brought. 

In  Blithe  v.  Midland  Ibt I/way,  18  Q.  K.  93,  in  an  action 
under  this  act  it  was  held,  that  nothing  could  be  recovered, 
except  the  |>ecuniary  losw  sustained  by  reason  of  the  death, 
by  the  jiersons  for  whose  l>en«'fit  the  action  was  brought,  and 
that  the  measure  of  damages  was  not  the  loss  or  suffering  of 
the  deceased,  but  the  injury  resulting  from  the  death  to  his 


NOVEMBER  TERM,  1862.  201 

Telfer  v.  Northern  Railroad  Co. 

family,  and  that  nothing  was  recoverable  as  a  solatium.  Cole- 
ridge, J.,  makes  this  remark,  that  it  must  be  recollected  that 
the  act  applies  not  only  to  great  railway  companies,  but  to 
little  tradesmen,  who  send  out  a  cart  and  horse  in  the  care  of 
an  apprentice. 

It  would  seem  that  this  would  have  been  the  proper  rule 
of  damages  if  it  had  not  been  prescribed  by  the  act.  Ford  v. 
Monroe,  2  Wend.  210 ;  Park  v.  The  Mayor  of  New  YorJcr 
3  Corns.  489. 

The  rule  to  show  cause  must  be  made  absolute. 

VAN  DYKE,  J.  These  two  suits  were  tried  together,  and 
were  brought  by  the  father  to  recover  compensation  in  money 
for  the  loss  of  his  sons,  who  were  killed  by  coming  in  col- 
lision with  a  locomotive  and  train  of  cars.  It  is  difficult  to- 
look  at  these  suits  in  the  light  of  mere  actions  for  damages, 
without  being  influenced,  in  some  measure,  by  considerations, 
such  as  we  labor,  almost,  in  vain,  to  turn  aside  from.  The 
sad  fate  of  the  two  lads,  and  the  grievous  affliction  which  so- 
suddenly  fell  upon  a  parent's  heart,  are  well  calculated  to 
awaken  the  kind  sympathy  of  every  human  bosom.  Sym- 
pathy and  condolence  we  may  indeed  extend  to  the  plaintiff, 
but  unfortunately  for  him,  we  cannot  permit  these  to  in- 
fluence us  in  the  sterner  duties  which  we  have  to  perform  in 
the  cases.  The  only  question  which  we  can  examine  into  is, 
whether  he  has  shown  himself  entitled  to  sustain  the  ver- 
dicts which  he  has  obtained.  The  jurors  doubtless  discharged 
their  duty  honestly  and  conscientiously  in  these  cases ;  but  it  is 
none  the  less  the  duty  of  the  courts  to  set  these  verdicts 
aside,  if  they  be  found  contrary  to  the  law  and  the  testi- 
mony. 

The  charge  is,  that  this  occurrence  took  place  through  the 
carelessness,  negligence,  and  improper  conduct  of  the  defend- 
ants. It  seems  to  be  very  well  settled,  that  if  it  did  not  take 
place  in  some"  such  way  there  can  be  no  recovery ;  but  it  is 
equally  well  settled,  that  although  there  may  be  carelessness 
and  negligence  on  the  part  of  the  party  doing  the  injury, 


202        XE\V  JERSEY  SUPREME  COURT. 


Telfer  v.  Northern  Railroad  Co. 


yet  if  there  was  an  equal  amount  of  carelessness,  negligence, 
and  improper  conduct  on  the  side  of  the  party  injured,  he 
cannot  recover  for  such  injuries.  And  this  is  the  answer 
which  the  defendants  make  to  the  plaintiff's  charge,  that  the 
carelessness  and  negligence  was  not  on  their  side,  but  on  the 
side  of  the  parties  injured :  and  that,  for  this  reason,  the  ver- 
dicts are  contrary  to  the  law  and  the  evidence. 

It  is  not  an  easy  matter  to  determine  always  what  con- 
stitutes legal  negligence  and  carelessness  on  the  part  of  those 
who  conduct  railway  trains,  for  we  cannot  very  well  com- 
pare them  with  any  other  mode  of  land  conveyance.  Rail- 
roads and  railroad  trains  and  railroad  travel  are  specially 
authorized  by  law.  The  legislature  are  supjwsed  to  know 
that  these  trains  move  with  immense  weight  and  power  and 
speed,  and  they  authorize  them  to  do  so,  neither  limiting  nor 
restraining  them,  to  any  extent,  in  these  respects.  It  is  also 
well  known  that  at  the  rate  of  speed  at  which  they  go  they 
are  far  less  governable,  so  far  as  stopping  is  concerned,  than 
in  any  other  mode  of  land  travel,  and  far  more  dangerous  in 
cases  of  collision.  This  the  legislature  are  supposed  to  know 
and  understand,  and  yet  they  seem  to  authorize  them  so  to 
move.  They  are  required,  it  is  true,  to  ring  their  bells,  blow 
their  whistles,  and  keep  up  sign-lxxirds,  but  they  are  not  re- 
quired in  any  case  to  lessen  their  speed  when  crossing  any  other 
road,  or  to  station  signal  men  there,  except  when  municipal  cor- 
porations occasionally  impose  upon  them  these  duties.  Nor 
would  the  company  be  responsible  for  damages  arising  from 
collision  when  there  was  no  whistle  blown,  or  bell  rung,  or 
sign-board  up,  if  the  ab.senee  of  these  things  in  no  way  con- 
tributed to  the  accident.  It  is  difficult,  therefore,  to  deter- 
mine that  a  company  is  guilty  of  negligence,  or  carelessness, 
or  improper  conduct,  while  it  i.s  only  doing  those  things  which 
the  legislature  ha*,  by  formal  enactments  or  by  necessary 
implication,  expressly  authorized ;  for  instance,  many  of  our 
railroads,  which  frequently  cross  our  common  highways  at 
very  acute  angles,  and  alter  running  parallel  with  them 
and  close  to  them  for  long  distances,  thus  frightening  the 


NOVEMBER  TERM,  1862.  203 

Telfer  v.  Northern  Railroad  Co. 

horses  and  terrifying  and  endangering  all  persons  traveling 
on  such  highways,  would  doubtless  be  considered  public  nui- 
sances, and  be  indictable  as  such,  if  carried  on  by  private 
individuals  not  authorized  by  law  ;  yet  when  the  legislature, 
which  is  supposed  to  take  all  these  things  into  consideration, 
expressly  authorize  them  so  to  do,  they  cannot  be  considered 
as  nuisances.  This  was  so  held  in  4  Barn.  &  Aid.  30,*  Ros- 
eoe's  Orim.  Evidence  794. 

It  is  very  easy,  however,  to  see  how  all  other  persons  who 
attempt  to  go  upon  or  across  a  railroad  track  are  placed  under 
the  necessity  of  using  much  greater  care  and  caution  than  when 
going  on  or  across  any  ordinary  road ;  for  all  other  persons  and 
conveyances  are  usually  under  immediate  control,  and  may  be 
stopped  instantly  if  any  danger  threatens ;  but  railroad  trains 
are  notoriously  otherwise,  and  hence  greater  care  and  caution 
are  necessary  to  avoid  them.  All  other  conveyances  can  turn 
to  the  right  or  to  the  left,  or  in  any  other  direction,  to  avoid 
accidents ;  but  railroad  trains  can  do  neither.  They  have  a 
single  fixed  track,  in  which  they  must  move,  and  can  go  no- 
where else.  All  persons  and  tilings  are  perfectly  safe  from 
collisions  except  on  this  narrow  track,  and  cannot  be  harmed 
unless  they  go  upon  that  track ;  consequently  every  person  is 
under  the  strongest  possible  obligation  not  to  venture  upon 
that  track  when  the  cars  are  about  to  pass.  If  he  do  so,  and 
get  hurt,  it  can  scarcely  be  otherwise  than  that  the  risk  and 
the  fault  are  his  own.  Nor  does  it  make  any  difference  how 
strongly  the  party  may  believe  or  suppose  that  he  can  cross  with 
safety.  If  he  get  hurt,  the  miscalculation  was  his  own,  and  the 
•consequences  must  rest  upon  him.  Nor  does  it  at  all  change 
the  case  that  the  party  did  not  think  of  the  cars.  He  was 
bound  to  think  of  them  if  he  knew  the  road  was  there.  Nor  is 
it  any  excuse  that  he  was  in  a  covered  wagon,  and  did  not  see, 
or  did  not  see  fit  to  look ;  for  a  person  cannot  close  his  eyes  or 
cover  himself  up  in  the  midst  of  danger,  and  then  plead  that 
he  could  not  see.  Neither  can  it  be  successfully  urged  that  the 
persons  injured  were  too  young  to  exercise  the  prudence  and 

*The  King  v.  Pease. 


204          NEW  JERSEY  SUPREME  COURT. 


Telfer  v.  Northern  Railroad  Co. 


discretion  of  an  adult;  for  this  is  the  very  reason,  if  so,  why 
they  should  not  have  been  exposed  to  such  a  peril.  It  was 
carelessness  or  recklessness  to  do  so. 

It  is  not  a  trifling  matter  to  stop  a  train  of  cars  where  it 
would  not  otherwise  stop  when  it  is  running  on  time,  and  is 
required  to  pass  another  train  at  a  given  point,  and  when  the 
failure  to  do  so  might  produce  serious  consequences.  I  do 
not  think  a  conductor  is  bound  to  stop  his  train  because  he 
sees  an  individual  standing  on  the  track  a  quarter  of  a  mile 
ahead  of  him ;  because  he  lias  every  reason  to  supjwse  that  he 
will  leave  the  track  before  the  cars  reach  him.  Nor  do  I 
think  he  is  bound  to  stop  his  train  because  he  sees  a  vehicle 
slowly  approaching  the  road,  or  quietly  standing  a  few  yards 
from  it,  with  the  horse's  head  towards  it ;  for  he  has  every 
reason  to  sup|>ose  that  they  will  not  attempt  to  cross  until 
the  train  be  passed  ;  and  if  they  suddenly  attempt  to  do  so 
when  too  late  to  stop  the  train,  and  get  injured  in  the  effort, 
the  fault  is  not  that  of  the  company  nor  its  agents,  unless 
their  conduct  be  so  grossly  negligent,  as  that  the  exercise  of 
proper  and  reasonable  caution  and  prudence  on  the  |>art  of 
the  party  injured  could  not  have  protected  him  from  the 
injury. 

It  is  true,  then,  that  these  verdicts  are  contrary  to  the 
law  and  the  evidence,  or  either  of  them  ?  If  they  are,  they 
should  be  set  aside.  The  law  on  the  subject  seems  to  be  so 
well  settled  by  numerous  decisions,  to  be  found  scattered 
through  the  law  books,  and  is  so  unmistakable  that  I  shall 
not  occupy  time  in  referring  to  it.  It  may  be  fairly  and 
safely  assumed  that,  where  the  negligence,  or  carelessness,  or 
impro|>er  conduct  of  the  company  or  its  agents  is  clear,  or 
where  the  exercise  of  a  reasonable  amount  of  care  and  pru- 
dence on  their  part  would  have  prevented  the  collision,  and 
they  did  not  exercise  it,  they  will  be  liable,  provided  the 
jwrty  injured  was  not  himself  guilty  of  the  same  want  of 
reasonable  care  and  prudence;  for  if  he  t<n>,  by  the  exercise 
of  a  reasonable  amount  of  care  and  prudence,  might  have 
avoided  the  accident,  and  did  not  exercise  it,  he  cannot 


NOVEMBER  TERM,  1862.  205 

Telfer  v.  Northern  Railroad  Co. 

recover,  even  though  the  company  were  culpably  negligent. 
He  cannot  visit  the  consequences  of  his  own  indiscretion, 
folly,  or  want  of  judgment  upon  the  adverse  party.  He  must 
bear  them  himself. 

I  cannot  say  that  the  plaintiff  did  not  offer  evidence  enough 
to  warrant  the  cases  in  going  to  the  jury,  yet  I  am  forced  to 
say  I  think  it  was  very  slender;  unless,  indeed,  the  mere  fact 
that  the  boys  were  killed  by  the  collision  is  of  itself  sufficient 
to  make  out  the  case  in  the  first  instance ;  a  proposition  which 
I  think  we  cannot  properly  admit.  Of  the  seventeen  wit- 
nesses which  he  offered,  but  one  only  seems  to  have  seen  the 
occurrence  at  all,  and  she  saw  it  through  the  window  of  her 
dwelling-house,  at  a  distance  of  some  eight  hundred  feet,  and 
when  looking  directly  on  the  rear  of  the  wagon,  which  was 
closed  behind.  She  did  not  hear  either  bell  or  whistle  before 
the  collision  ;  she  first  saw  the  boys  by  the  sign-post,  some 
ninety  feet  from  the  track ;  she  did  not  then  see  the  cars,  but 
heard  them.  Several  of  the  witnesses  were  in  the  public 
house  near  by,  with  closed  doors  and  windows,  who  did  not 
see  the  occurrence  until  it  was  past,  and  most  of  whom  say 
they  did  not  hear  the  whistle  till  after  the  collision  ;  a  fact 
which  they  could  not  very  well  know,  as  they  did  not  see 
precisely  when  it  did  take  place.  Another  of  the  plaintiff's 
witnesses  says  he  stood  in  the  shed  and  saw  the  cars  for  a 
considerable  distance,  till  within  thirty  or  forty  feet  of  the 
crossing,  but  the  blowing  of  the  whistle  and  the  noise  of  the 
cars  frightened  his  horses,  and  he  did  not  see  the  accident. 
A  number  of  witnesses  were  also  examined  to  show  that  the 
crossing  was  a  dangerous  one.  It  certainly  was  somewhat 
dangerous,  and  so  is  every  other  crossing,  unless  some  care 
and  caution  are  used  by  persons  attempting  to  pass  over  ; 
but,  according  to  the  map  or  diagram  produced  by  the  plain- 
tiff, the  crossing  was  not  remarkably  dangerous.  But  no 
witness  on  the  part  of  the  plaintiff  says  anything  which  goes 
to  show,  whether  the  boys  acted  prudently  or  imprudently, 
whether  the  fault  was  wholly  their  own,  or  whether  it  was  not. 

The  testimony  on  the  part  of  the  defence  is  much  more 

VOL.  i.  N 


206         NEW  JERSEY  SUPREME  COURT. 


Telfer  v.  Northern  Bailroad  Co. 


definite  and  positive.  Six  witnesses  say  they  saw  the  occur- 
rence; five  of  them  were  on  the  train,  though  not  all  in  the 
defendants'  employ.  They  all  concur  in  saying  that  the 
whistle  was  blown  some  half  mile  from  the  station ;  the 
brakes  were  put  on  to  check  the  speed  until  it  could  be 
ascertained  whether  there  were  any  passengers  to  get  on  or 
get  off  at  the  station.  When  the  signal  was  given  that  there 
were  no  passengers,  the  whistle  was  again  blown  to  take  off 
the  brakes.  In  an  instant  it  was  again  blown,  Violently,  to 
put  them  on  again,  indicating  danger,  and  continued  to  blow 
violently  until  after  the  accident.  The  brakemen  say  that 
the  brakes  were  instantly  applied.  The  engineer  says  the 
engine  was  instantly  reversed,  and  that  the  bell  was  rung  for 
a  considerable  distance. 

These  five  witnesses  concur  in  saying  that  when  the  brakes 
were  last  blown  off,  and  the  cars  some  two  hundred  and  fifty 
or  three  hundred  yards  from  the  crossing,  the  horse,  wagon, 
and  boys  were  quietly  standing  back  from  the  track,  a  dis- 
tance which  measures  thirty-two  feet;  that  one  of  the  boys 
was  then  looking  out  of  the  front  of  the  wagon  at  the  train, 
but  at  the  moment  of  blowing  off  the  brakes,  the  horse,  by  a 
stroke  from  the  lines  or  a  whip,  or  something  else,  was  started 
across  the  track,  and  at  such  s|>eed  that  he  was  on  a  gallop 
when  the  wagon  was  struck.  A  sixth  witness,  who  was  not 
on  the  train,  but  was  close  by,  confirms  the  testimony  of  the 
other  five,  so  far  as  the  conduct  of  the  boys  is  concerned.  He 
says  that  lie  saw  the  cars,  and  told  the  boys  that  they  were 
coming;  that  the  older  boy  answered  that  he  did  not  care. 
He  says  that  they  stopped,  however,  a  short  distance  from 
the  track;  he  saw  the  boy  strike  the  horse  with  the  lines,  and 
lie  scared  and  started  north,  and  the  car*  caught  him. 

All  this  evidence  touching  the  conduct  of  the  defendants, 
as  well  as  that  of  the  boy*,  is  wholly  uncontradicted,  except 
by  the  witness  who  saw  the  occurrence  from  her  window,  at 
a  distance  of  eight  hundred  feet.  She  says  the  wagon  did  not 
stop  at  all ;  but  a<*  she  was  *ome  distance  off,  and  was  looking 
directly  at  the  rear  of  the  wagon,  and  through  the  glass  of 


NOVEMBER  TERM,  1862.  207 

Telfer  v.  Northern  Railroad  Co. 

her  window,  she  could  not  very  well  tell  with  certainty,  and 
may  be  mistaken  as  to  that  fact;  but  the  others  all  saw  the 
occurrence  from  points  which  did  not  admit  of  mistakes  in 
that  particular. 

Three  of  the  witnesses  also  say  that  they  heard  one  of  the 
boys  say,  after  he  was  hurt,  that  he  saw  the  cars  coming, 
but  thought  he  could  get  across.  The  speed  of  the  cars  is 
estimated  by  some  at  from  eighteen  to  twenty  miles  per  hour, 
and  by  others  at  from  thirteen  to  fifteen. 

Does  this  evidence,  then,  taken  altogether,  show  any  negli- 
gence or  improper  conduct  on  the  part  of  the  defendants  or 
their  agents?  If  it  does,  I  am  wholly  unable  to  perceive 
it.  I  do  not  see  what  they  could  have  done  that  would  have 
prevented  the  accident  that  they  did  not  do.  If  it  be  true, 
and  it  is  abundantly  proved,  that  the  boys  had  stopped  their 
wagon,  and  were  looking  at  the  cars  as  they  approached,  the 
conductor  was  not  bound  to  stop  the  train  to  see  what  they 
intended  to  do  next;  for  he  had  every  reason  to  suppose 
that,  having  once  stopped,  they  would  remain  .in  that  condi- 
tion until  the  train  should  be  passed.  The  evidence  of 
persons  that  they  did  not  hear  the  bell  or  the  whistle,  when 
they  were  not  in  a  good  condition  to  hear  them,  or  if  they 
heard  the  whistle  at  all,  that  it  was  not  blown  until  after  the 
collision,  when  they  did  not  see  the  collision  at  all,  cannot 
have  very  great  weight  against  the  evidence  of  those  who 
did  see  and  hear,  and  say  it  was  positively  and  directly 
otherwise. 

Does  the  evidence,  on  the  other  hand,  show  that  the  con- 
duct of  the  boys  was  cautious  and  prudent,  such  as  the  occa- 
sion called  for?  On  the  contrary,  it  seems  difficult  to 
imagine  a  case,  where  the  exercise  of  those  duties  could  have 
been  more  deplorably  absent.  Their  action  was  rash  and 
indiscreet  in  the  extreme.  The  locomotive  must  have  been 
within  but  -a  few  yards  of  them  when  they  attempted  to 
cross;  they  had  but  thirty-two  feet  to  go,  and  with  their 
horse  on  a  gallop,  they  had  not  yet  got  over  when  they  were 


208          NEW  JERSEY  SUPREME  COURT. 


Telfer  v.  Northern  Railroad  Co. 


struck,  showing  that  the  train  was  very  close  to  them  when 
they  started. 

Unpleasant  as  the  idea  is,  there  seems  no  way  of  resisting 
the  conclusion  that  the  fault,  as  well  as  the  misfortune,  was 
wholly  and  entirely  their  own.  It  appears,  too,  by  the  evi- 
dence of  their  sister,  that  these  boys  had  been  in  the  habit,  one 
or  the  other  of  them,  of  going  this  way  every  day  for  the  last 
two  or  three  years,  and  returning  alx>ut  the  same  time ;  that 
the  horse  was  the  one  they  usually  drove,  and  that  he  was 
gentle,  and  so  said  others;  so  that  nothing  can  be  urged  in 
their  favor  on  the  score  of  their  being  ignorant  of  the  peril 
into  which  they  went. 

These  verdicts,  therefore,  are  contrary  to  the  law  of  the  land 
which  governs  such  cases,  and  that  law  should  be  fully  and 
strongly  declared  and  maintained  ;  for  the  public  are  as  much 
concerned  in  the  caution  and  prudence  of  those  who  cross  rail- 
ways, as  they  are  in  the  caution  and  prudence  of  those  who 
conduct  the  trains.  If  this  occurrence1,  happening  just  as  it 
did,  had  left  the,  boys  unharmed,  but  had  thrown  the  train  from 
the  track,  killing  half  a  dozen  passengers,  and  maiming  four 
times  that  numl>er,  we  should  have  seen  more  clearly  the  force 
of  this  remark.  The  necessity  for  caution,  therefore,  is  tenfold 
greater  when  crossing  a  railroad  track  than  in  crossing  any 
other  road,  and  the  culpability  of  their  neglecting  to  exercise 
that  caution  is  ten  times  as  great  as  in  ordinary  cases.  In 
crossing  ordinary  roads,  caution  and  care  are  chiefly  demanded 
to  avoid  running  against  or  over  anybody  else ;  in  crossing 
railroads,  it  is  exacted  to  avoid  being  run  over  yourself.  In 
the  former  case  the  blame  attaches  primti  facie  to  the  party 
doing  the  injury ;  in  the  latter,  it  attaches,  in  the  first  instance, 
to  the  |>arty  obstructing  the  track.  Common  prudence  and 
common  caution  require  every  person  approaching  a  railroad 
crossing,  if  he  knows  of  it,  to  pause,  and  see  if  he  can  cross 
with  safety;  and  if  there  I  K;  any  danger  at  all,  he  is  bound  to 
wait  until  it  is  pant;  and  although  there  may  be  much  prac- 
tice to  the  contrary,  still  if  he  do  not  do  this,  he  does  not- 
exercise  either  common  prudence  or  common  caution. 


NOVEMBER  TERM,  1862.  209 


Telfer  v.  Northern  Railroad  Co. 


The  evidence  in  these  cases  affirmatively  and  clearly  proves 
the  most  culpable  rashness  and  improper  conduct  on  the  part 
of  the  boys,  and  therefore  the  verdicts  are  contrary  to  the 
law  which  we  are  bound  to  apply  to  them,  and  for  this  reason 
they  should  be  set  aside. 

The  verdicts,  too,  are  clearly  against  the  evidence  in  the 
cases;  not  merely  against  the  weight  of  evidence,  but  con- 
trary to  the  whole  evidence ;  and  they  should  be  set  aside  for 
this  reason  also ;  and  to  this  conclusion  I  should  have  been 
brought,  as  a  matter  of  necessity,  even  if  the  defendants  had 
offered  no  evidence  at  all,  for  the  reason  that,  with  their  evi- 
dence, or  without  their  evidence,  there  is  nothing  in  the  whole 
•of  it  which  shows  affirmatively  that  the  boys  exercised  any 
care,  prudence,  or  caution  whatever  to  avoid  the  occurrence,  or 
that  the  fault  was  not  clearly  and  positively  their  own.  These 
things,  or  some  of  them,  the  plaintiff  was  bound  to  show  be- 
fore he  could  be  entitled  to  the  verdicts. 

It  is  insisted,  also,  that  the  damages  in  these  cases  are  ex- 
cessive. In  the  case  of  David  they  are  assessed  at  $936,  and 
in  the  case  of  William  at  $1056.  In  the  view  which  I  have 
taken  of  the  cases,  it  is  not  necessary  to  examine  this  part  of 
them,  but  the  question  presented  is  one  of  importance,  and 
deserves  the  consideration  of  the  court,  either  now  or  at  some 
other  time.  The  jury  seem  to  have  been  left  pretty  much  to 
their  own  conclusions  in  the  matter,  as  there  was  but  little,  if 
any  evidence  to  throw  light  on  the  subject  beyond  the  fact  of 
the  relationship  between  the  father  and  his  children ;  audit 
may  be  doubted  if  they  could  have  reached  the  conclusions 
•which  they  did,  if  they  had  been  governed  by  correct  legal 
principles. 

The  action  is  the  creation  of  the  statute,  and  it  is  needless 
to  say  that  it  must  conform  strictly  to  it.  It  is  liable  to 
great  abuse,  and  the  court  should  see  that  every  verdict 
which  is  rendered  contrary  to  it  should  be  set  aside.  It  is 
simply  an  action  to  recover  in  dollars  and  cents,  a  compensa- 
tion for  the  loss  and  damages  which  have  actually  been  sus- 
tained. As  the  father  of  his  children,  the  plaintiff  was 
-entitled  to  their  services  until  they  should  arrive  at  the  age 


210         NEW  JERSEY  SUPREME  COURT. 

Telfer  v.  Northern  Railroad  Co. 

of  twenty-one  years ;  and  what  those  services  might  reason- 
ably have  been  exj>ected  to  be  worth  he  was  entitled  to  re- 
cover, and  nothing  more,  unless  it  be  expenses  growing  out 
of  the  injuries,  subject  to  the  burthens  and  encumbrances 
which  that  relationship  imposed  upon  him.  Nothing  can  be 
allowed  for  the  mental  anguish  which,  as  a  parent,  he  is  sup- 
posed to  have  suffered.  Nothing  for  the  satisfaction  and  com- 
fort of  having  his  sons — nothing  for  the  loss  of  their  society 
and  associations. 

The  damages  in  the  case  of  William  are  fixed  at  $1056- 
He  was  over  thirteen  years  of  age,  and  had  something  over 
seven  years  to  serve  his  father.  There  is  an  allo\vancc,then,  of 
about  $150  per  year  on  an  average.  This  is  about  what  the 
services  of  a  full  grown  man  would  be  worth  in  the  business 
in  which  the  plaintiff  was  engaged,  when  boarded,  provided 
he  should  work  faithfully  the  whole  of  that  time. 

If  this  is  the  principle  upon  which  the  jury  proceeded, 
they  were  unquestionably  wrong;  for  as  the  plaintiff1  was 
bound  not  only  to  feed  but  to  properly  clothe  and  educate  his 
son,  and  to  take  care  of  him  if  sick,  pay  his  physician's  bills,. 
&c.,  it  may  well  be  doubted  whether  his  services  would  have 
been  worth  any  more  than  his  board,  clothing,  education,, 
and  other  incidentals,  previous  to  his  arriving  at  the  age  of 
eighteen  years.  At  all  events,  these  things  should  have  l>eei» 
taken  into  consideration  by  the  jury,  and  proper  deduc- 
tions made  on  account  of  them,  as  well  as  for  the  days  of  idle- 
ness, of  absence  and  of  pleasure,  incident  to  such  relation- 
ship, and  likely  to  intervene.  The  jury  seem,  too,  to  have 
gone  on  the  supposition  that  William  would  remain  in  sound 
health,  and  serve  faithfully  during  every  day  of  the  time; 
whereas  they  were  bound  to  consider  the  probability  that, 
through  accidents,  sickness,  and  the  like,  he  might  IK;  unable, 
possibly  for  a  considerable  portion  of  the  time,  to  perform 
service  at  all,  when  he  would  be  an  exj>ense,  rather  than  atv 
advantage.  Then,  too,  they  seem  to  have  taken  it  for 
granted  that  he  was  certainly  going  to  live  through  the 
whole  |M'riod,  and  his  life,  during  the  whole  of  that  time,  the 
defendants  are  made  t->  insure;  whereas  it  was  possible  he 


NOVEMBER  TERM,  1862.  211 

Telfer  v.  Northern  Kailroad  Co. 

might  die  the  next  day,  when  his  services,  of  course,  would 
have  ceased.  We  may  be  quite  willing  to  bind  ourselves  to 
pay  a  man  $1050  for  seven  years'  service,  if  we  can  certainly 
have  that  service  secured  to  us,  when  we  would  not  be  willing 
to  pay  half  that  sum  if  we  are  to  take  all  the  risk  of  his  sick- 
ness, accidents,  and  death  in  the  meantime.  These  things,  too, 
should  have  been  taken  into  consideration  and  allowed  for; 
and  if  they  had  been,  all  of  them,  it  seems  difficult  to  see  how 
the  jury  could  properly  have  calculated  the  damages  at  $1056. 
The  same  principles  and  rules  apply  of  course  to  the  case  of 
David ;  and  if  this  were  the  only  reason  on  which  we  are  asked 
to  set  the  verdicts  aside,  I  should  feel  constrained  to  yield  to  it, 
believing,  as  I  do,  that  the  jury  must  have  proceeded  upon  er- 
roneous principles,  in  this  respect,  in  reaching  their  conclusions. 

ELMER,  J.  The  weight  of  evidence  in  this  case  so  clearly 
indicates,  that  the  culpable  negligence  of  the  plaintiff's  sons 
contributed  to  produce  the  collision  which  caused  their  death, 
that  I  think  we  are  bound  to  make  the  rule  for  a  new  trial 
absolute. 

I  am  also  of  opinion  that  the  damages  were  excessive.  The 
jury  had  no  legal  right  to  give  more  than  the  actual  pecuniary 
injury  to  the  plaintiff,  the  father  and  next  of  kin  of  the  persons 
killed,  resulting  from  their  death.  In  this  case  there  was 
little  or  no  difficulty  in  arriving  at  a  correct  result.  The  boys 
were  of  the  ages  of  thirteen  and  fifteen  years,  so  that  the  father 
was  entitled  to  fourteen  years'  service  from  them  before  they 
became  of  full  age.  The  true  rule  for  measuring  his  injury 
was  the  cost  of  procuring  equivalent  help  from  others,  whose 
clothing  and  other  necessaries  should  be  furnished  by  him  ;  to 
which  might,  perhaps,  be  added  reasonable  funeral  charges, 
beyond  what  was  expressly  contributed  for  that  purpose.  Upon 
the  most  liberal  computation,  these  expenses  could  not  have 
amounted  to  anything  like  the  sum  awarded  by  the  jury. 

Verdict  set  aside. 

CITED  in  Bonnell  v.  D.,  L.  &  W.  R.  R.  Co.,  10  Vroom  192 ;  Morris  and 
Essex  R.  R.  Co.  ads.  Hadan  et  al.,  4  Vroom  151 ;  Blaker's  Executrix  v.  Re- 
ceivers of  N.  J.  Midland  Co.,  3  Stew.  244.  • 


212          NEW  JERSEY  SUPREME  COURT. 


Wrege  v.  Westcott 


FREDERICK  WREGE  v.  HENRY  WESTCOTT. 

1.  In  an  action  of  trespass  for  assault  and  battery,  evidence  directly 
tending  to  show  that  the  plaintiff  had  got  up  a  false  case,  to  impose 
upon  the  jury,  is  competent  in  mitigation  of  damages. 

2.  A  letter  from  the  plaintiff  to  the  father  of  the  defendant,  not  contain- 
ing a  statement  of  any  facts  material  to  the  controversy,  and  relating 
only  to  an  ofler  of  compromise,  is  not  competent  evidence. 


Oil  rule  to  show  cause,  &c. 

This  was  an  action  of  trespass  for  an  assault  and  battery. 
The  iasue  was  tried  at  the  Hudson  Circuit,  and  a  verdict  ren- 
dered for  the  plaintiff*  for  six  cents  damages. 

A  rule  on  the  defendant  to  show  cause  why  the  verdict 
should  not  be  set  aside  was  granted  by  the  court. 

The  reasons  assigned  for  setting  aside  the  verdict  are  stated 
in  the  opinions  delivered. 

For  the  rule,  S.  B.  Ransom. 
Contra,  C.  H.  Winfidd. 

The  opinion  of  the  court  was  delivered  by  the 
CHIEF  JUSTICE.  There  was  a  verdict  in  this  ease  for  the 
plaintiff  for  six  cents  damages.  The  action  was  for  assault 
and  battery.  The  plaintiff  seeks  to  set  aside  the  verdict  be- 
cause the  damages  are  insufficient  to  compensate  for  the 
injury,  and  should  have  been  more  than  nominal  under  the 
evidence  in  the  cause;  and  also  UJMMI  the  further  ground  of 
the  admission  of  illegal  evidence  on  the  part  of  the  defendant, 
and  the  rejection  of  legal  evidence  offered  by  the  plaintiff. 

The  plaintiff  was  a  hired  man,  working  on  the  farm  of  the 
father  of  defendant,  some  distance  from  Jersey  City.  The 
defendant  lived  with  his  father  in  Jersey  City.  The  plaintiff 
alleged,  on  the  trial,  and  attempted  to  prove  that,  in  March, 
1860,  while  near  the  stable  of  the  defendant's  father  attend- 
ing to  his  lawful  business,  he  was  set  upon  and  cruelly  beaten 
with?  a  stone  by  the  defendant;  that  during  the  conflict,  he 


NOVEMBER  TERM,  1862.  213 

Wrege  v.  Westcott. 

received  a  blow,  which  produced  a  rupture  of  the  walls  of  the 
abdomen,  so  that  his  bowels  came  out. 

On  the  other  hand,  the  allegation  of  the  defendant  was, 
that  the  plaintiff  sought  a  quarrel  and  conflict  for  the  pur- 
pose of  feigning  injury  and  sickness  on  account  of  the  beat- 
ing he  might  receive,  in  order  to  get  damages  from  the  de- 
fendant ;  that  this  was  a  preconcerted  plan,  and  avowed  by 
him  in  advance  of  the  quarrel ;  that  the  plaintiff  received  no 
substantial  injury,  and  that  the  rupture  with  which  he  was 
afflicted  was  the  result  of  a  previous  injury,  and  had  been  of 
long  standing. 

Both  parties  directed  their  evidence  to  sustain  these  points, 
and  to  rebut  the  proof  made  against  them.  Michael  Keefe, 
who  was  present  at  the  affray,  and  was  a  principal  witness 
for  the  defence,  testified  that  he  had  a  conversation  with  the 
plaintiff  about  a  difficulty  he  had  with  the  defendant ;  that 
he  and  Henry  had  had  such  a  difficulty  some  time  before,  in 
which  plaintiff  said  he  was  a  damn  fool,  that  he  did  not  get 
around  him,  so  that  he  would  strike  him,  then  go  home  and 
go  to  bed,  and  say  he  was  sick,  and  send  for  a  doctor,  and 
then  he  could  knock  a  little  $300  or  $400  out  of  him ;  that 
he  told  him  it  was  not  worth  while — he  could  earn  enough 
to  support  himself. 

This  evidence  the  plaintiff  objected  to  as  irrelevant. 

There  was  considerable  medical  evidence  in  the  cause  to 
show  that  the  rupture  could  not  have  been  the  result  of  injury 
received  by  plaintiff  at  the  quarrel,  and  that  it  was  pretended 
to  have  been  caused  by  the  defendant  to  extort  money,  by 
untruly  aggravating  the  damages. 

The  evidence  was  competent  for  the  purpose  of  showing 
that  the  plaintiff  had  got  up  a  false  case  to  impose  upon  the 
jury.  It  directly  tended  to  prove  that,  and  was  therefore  cal- 
culated to  diminish  the  plaintiff's  damages. 

On  his  cross-examination,  this  witness  said  that  defendant 
did  not  strike  "or  hurt  him  at  all;  that  he  did  not  have  his 
head  tied  up,  or  show  Frederick  Wrege,  plaintiff's  son,  any 
marks  on  his  head  or  face,  and  tell  him  that  it  was  where 


214          NEW  JERSEY  SUPREME  COURT. 


Wrege  v.  Westcott. 


Harry  Westcott  had  beat  or  struck  him,  for  he  did  not  strike 
or  hurt  him. 

The  plaintiff,  on  his  rebutting  case,  offered  to  show,  by- 
plaintiff's  s«»n,  that  he  did  see  Keefe  have  his  head  tied  u[> 
after  his  trouble  with  Henry,  and  did  see  the  marks  on  it 
which  he  said  were  made  by  Henry  Westcott.  The  court 
overruled  this  evidence. 

The  evidence  was  competent  to  contradict  Keefe.  His 
testimony  was  material,  as  I  have  already  stated,  to  show 
the  existence  of  a  quarrel  between  him  and  Henry,  in  which 
he  was  not  injured,  and  the  advice  of  the  plaintiff  to  feign  an 
injury,  which  he  had  not  received,  to  extort  money  from 
Westcott. 

If  that  was  comj>etent,  I  think  this  is  so  also,  as  it  directly 
tends  to  weaken  the  force  of  the  evidence  of  Keefe  as  lo 
plaintiff's  advice  to  feign  an  injury  which  he  had  never  re- 
ceived. 

Plaintiff's  counsel  also  objected  t<>  a  letter  of  the  plaintiff, 
written  to  the  defendant's  father,  in  June,  1861,  in  regard  to 
the  then  pending  suit.  It  all  relates  to  an  alleged  offer  of 
compromise,  made  by  Mr.  Win  field  on  l>elialf  of  defendant's 
father,  and  to  conversations  tat  ween  him  and  Mr.  Winfield 
and  his  own  counsel,  about  the  inability  of  plaintiff,  a  poor 
man,  to  cope  in  litigation  with  a  rich  legislator  like  Mr. 
Westcott.  At  the  close  of  the  letter,  the  plaintiff  says,  I  give 
you  now  three  days'  time,  from  the  date  above  said,  to  let  me 
know  whether  I  receive  $000  out  of  your  hand  or  not ;  other- 
wise I  will  take  a  step  you  should  not  like  verv  much. 

This  letter  was  written  for  the  plaintiff,  he  not  speaking  or 
writing  English,  and  sent  t<>  Mr.  Westcott,  the  father. 

The  $600  referred  to  in  it  \vas  the  amount  which  the 
plaintiff  alleged  Wi»tcott's  attorney  had  agreed  to  pav  him, 
by  way  of  compromise.  The  letter  does  not  contain  any 
statement  of  any  fact  material  to  the  controversy  ;  it  relates 
entirely  to  an  offer  of  compromise,  and  should  not  have  been, 
received. 

These  decisions  of  the   court    necessarily  prejudiced    the 


NOVEMBER  TERM,  1862.  215 


Wrege  v.  Westcott. 


plaintiff,  and  reduced,  it  is  probable,  the  amount  of  damages 
recovered  by  the  verdict  to  the  unusual  sum  found,  at  least 
we  cannot  say  they  did  not  produce  that  result. 

The  verdict  should  be  set  aside,  and  a  new  trial  granted. 

YEEDENBURGH,  J.  This  was  an  action  brought  by  the 
plaintiff  against  the  defendant  for  an  assault  and  battery. 
The  defendant  pleaded  not  guilty.  A  verdict  for  the  plain- 
tiff for  six  cents. 

The  plaintiff  now  moves  for  a  new  trial — 1st,  upon  the 
ground  that  the  verdict  was  against  the  weight  of  the  evi- 
dence; 2d,  upon  the  ground  of  illegal  evidence  admitted  ;  3d, 
that  legal  evidence  was  overruled. 

Without  going  into  the  question  of  the  weight  of  the  evi- 
dence, or  expressing  any  opinion  thereon,  I  think  that  illegal 
evidence  was  admitted  in  the  case.  One  Michael  Keefe,  a 
witness  for  the  defendant,  testified,  among  other  things,  that 
some  time  before  the  assault  complained  of,  he,  Keefe,  had  a 
difficulty  with  the  defendant,  and  that,  in  a  conversation  he, 
Keefe,  had  with  the  plaintiff  about  this  difficulty  between 
Keefe  and  the  defendant,  the  plaintiff  said  to  Keefe,  that  her 
Keefe,  was  a  fool  that  he  did  not  get  around  the  defendant 
so  that  he  would  strike  him,  then  go  home  and  go  to  bed, 
and  say  he  was  sick,  and  send  for  a  doctor,  and  then  he  could 
knock  a  nice  little  $300  or  $400  out  of  him.  Keefe  an- 
swered the  plaintiff,  that  was  not  worth  while;  he  could  earn 
enough  to  support  himself.  Now  the  facts  proved  here  were 
not  relative  to  the  controversy  before  the  court ;  they  related 
to  an  assault  and  battery  at  another  time,  and  upon  another 
person,  and  whether  the  defendant  had  or  had  not  committed 
an  assault  and  battery  upon  Keefe  was  a  matter  of  indif- 
ference to  the  cause  on  trial.  The  evidence  could  only  have 
been  produced  to  prove  the  bad  character  of  the  plaintiff,  to 
prove  that  he  could  advise  another  man  to  sue  the  plaintiff 
on  an  unjust  claim.  Such  evidence  for  such  a  purpose  was  in- 
competent. In  the  first  place,  it  is  proving  a  bad  character 
by  a  specific  act,  which  the  plaintiff  could  not  be  deemed  to 


216          NEW  JERSEY  SUPREME  COURT. 

Beale  v.  Bern-man. 

•have  come  prepared  to  meet.  In  the  next  place,  whether 
the  advice  the  plaintiff  gave  Keefe  on  that  occasion  involved 
any  moral  turpitude,  dejM>nded  altogether  upon  the  question 
whether  Keefe  had  a  just  claim  upon  the  defendant  for 
damages.  So  that  if  it  was  competent  for  the  defendant  to 
prove  that  the  plaintiff  gave  such  advice  to  Keefe,  it  was 
clearly  competent  for  the  plaintiff  to  prove,  if  he  happened 
to  be  prepared  to  meet  such  an  issue,  that  Keefe  was  in 
reality  hurt,  and  had  a  just  and  good  cause  of  action.  This 
the  plaintiff  did  actually  afterwards  offer  to  prove.  This 
offer  by  the  plaintiff'  the  court  overruled.  So  that  the  case 
went  to  the  jury  under  proof  that  the  plaintiff  was  base 
enough  to  advise  Keefe  to  bring  an  unjust  suit  against  the 
defendant,  while  the  evidence  offered  by  the  plaintiff  to  prove 
that  Keefe  had  a  just  canst;  for  a  suit  against  the  defendant, 
and  that  his  advice  was  honest,  was  overruled. 

The  original  offer  of  the  evidence  of  Keefe,  in  this  regard, 
was  illegal,  and  calculated  to  create  prejudice,  and  probably 
did  create  prejudice  in  the  minds  of  the  jury  against  the 
plaint  ill',  or  at  least,  if  it  was  competent  for  the  defendant  to 
prove  it,  it  could  not  be  illegal  for  the  plaintiff  to  disprove  it. 

Let  the  verdict  be  set  aside. 


HORACE  A.  BEALE  v.  WILLIAM  H.  BERRYMAN. 

1.  To  a  suit  on  a  judgment  in  New  York,  the  plea  of  nil  debrt  is  the  gen- 
eral issue. 

2.  Under  our  statutes  of  1799,  J\'i>.  Dig.  681,  J  3,  and  of  March  6th, 
1852,  A'tz.  Dig.  681,  it  in  regular  in  such  suit  to  pleat!  nil  dtbct,  and 
give  notice  that  no  summons  had  heen  served  in  New  York  ;  and 
judgment  signed,  as  for  want  of  a  plea,  will  be  set  aside  with  costs 


In  debt.     On  motion  to  set  aside  judgment. 
F«»r  the  motion,  A.  O.  %ibri«kie. 
Contra,  /.  H'  Sc 


NOVEMBER  TERM,  1862.  217 

Beale  v.  Berryman. 

The  opinion  of  the  court  was  delivered  by 

VREDEXBUKGH,  J.  This  was  an  action  of  debt,  brought 
on  a  judgment  against  the  defendant  in  the  State  of  New 
York. 

The  defendant  here  pleaded  nil  debet,  and  gave  notice  that 
he  should  insist,  at  the  trial,  that  no  summons  had  been  served 
on  him  in  New  York. 

The  plaintiff  thereupon  signed  judgment  as  for  want  of  a 
plea.  Motion  is  now  made  to  set  aside  this  judgment  upon 
two  grounds. 

1st.  That  the  plea  and  notice  were  a  good  defence. 

2d.  That  if  they  were  not,  there  should  have  been  a  demur- 
rer and  motion  to  strike  out  the  notice. 

1st.  Were  the  plea  and  notice  a  good  form  of  pleading? 

By  the  act  of  1799,  Nix.  Dig.  681,  §  227,*  it  is  provided, 
that  it  shall  be  lawful  for  any  defendant  in  any  action,  except 
in  cases  of  mutual  dealing,  to  plead  the  general  issue,  and  to 
give  any  special  matter  of  defence  in  evidence,  giving  notice 
with  the  plea  of  such  special  matter.  By  the  act  of  March 
6th,  1852,  Nix.  Dig.  681, f  it  is  provided,  that  in  any  suit 
brought  on  a  foreign  judgment,  or  judgment  of  any  court  out 
of  this  state,  it  shall  be  lawful  for  the  defendant  to  show  that 
he  was  not  summoned,  notwithstanding  it  may  be  so  recited  in 
the  foreign  record  of  judgment. 

I  do  not  understand  the  objection  of  the  plaintiff  to  be,  that 
the  matter  set  up  in  the  notice  is  not  a  good  defence.  That 
question  is  too  well  settled  to  be  seriously  raised.  Aldrich  v. 
Kenney,  4  Con.  380,  and  cases  there  cited.  But  the  objection 
is  to  the  form  of  the  pleading.  It  is  said  that  the  statute,  Nix. 
Dig.  681,  §  227,  only  allows  a  notice  of  the  matter  of  defence 
upon  a  plea  of  the  general  issue,  and  that  nil  debet  is  not  a  plea 
of  the  general  issue,  and  therefore  the  notice  is  irregular. 

A  judgment  of  another  state,  when  brought  to  be  enforced 
here,  is  undoubtedly  a  foreign  judgment.  Execution  cannot 
issue  on  it  here  nor  can  it  be  enforced  proprio  vigore.  The 
constitution  of  the  United  States,  indeed  says,  that  full  faith. 

*Rev.,  p.  866,  \  117.    }Rev.,  p.  380,  \  15. 


21  s  NEW  JERSEY  SUPREME  COURT. 


Beale  v.  Berryman. 


and  credit  shall  be  given,  in  each  state,  to  the  records  and 
judicial  proceedings  of  any  other  state.  But  that  does  not 
make  them  judgments  of  this  state.  A  properly  certified 
record  of  a  judgment  in  another  state  is  a  good  foundation 
for  a  judgment  here,  but  is  not  itself  a  judgment.  It  is, 
notwithstanding  the  United  States  constitution,  a  foreign 
judgment,  but  entitled  to  |>eeuliar  credit  by  virtue  of  the  con- 
stitution. 

It  is  also  well  settled  that  nil  dcbet  is  the  general  issue  in 
debt  on  a  foreign  judgment.  1  Ch.  PI.  485  ;  BisseU  v.  Briggs, 
9  Mass.  462.  This  is  not  a  question  whether  the  plea  of  nil 
debet,  standing  alone,  is  a  good  plea  on  a  judgment  from  a 
sister  state,  for  it  has  often  l>een  held  that  it  was  not;  but 
the  question  merely  is  as  to  the  form  of  pleading,  whether  nil 
debct  is  the  general  issue  in  debt  on  a  foreign  judgment. 

If  it  is,  then  the  notice  is  proper  and  regular  under  our 
statute. 

The  judgment  must  be  set  aside  with  costs. 

Biiowx,  J.,  (dissenting.)  This  action  was  brought  upon  a 
judgment  rendered  for  the  plaintiff  against  the  defendant  in 
the  State  of  New  York.  The  defendant  pleaded  nil  dcbet, 
and  gave  notice  with  the  plea  that  he  would  prove  on  the 
trial  that  the  court  which  rendered  the  judgment  had  no 
jurisdiction  of  the  person  of  the  defendant.  The  plaintiff  dis- 
regarded the  plea,  and  took  judgment  as  by  default. 

The  questions  are,  whether  the  plea  of  nil  debct  is  good  for 
any  purpose,  when  pleaded  in  an  action  U|K>n  a  judgment  of 
another  slate,  and  if  not,  whether  the  defendant  had  the  right 
to  treat  the  plea  as  a  nullity,  and  take  judgment. 

There  is  no  doubt  that  this  plea  is  good  when  pleaded  to 
it  foreign  judgment,  and  bad  when  pleadeil  to  a  domestic 
judgment  To  the  first  it  is  u  sufficient  answer,  for  the 
judgment  may  be  inquired  into,  and  is  only  prima  facie  a 
good  cause  of  action.  To  the  other  it  is  no  answer,  for  the 
judgment  i.->  conclusive  evidence  of  the  debt.  The  action  is 
in  debt  and  for  the  recovery  of  a  debt,  but  it  is  a  debt  adjudi- 


NOVEMBER  TERM,  1862.  219 

Beale  v.  Berryinan. 

cated.  For  the  defendant  to  say  I  do  not  owe  it  is  nothing. 
The  record  says  he  does  owe,  and  the  plea,  if  good  for  any 
purpose,  admits  the  record.  It  is  now  well  settled  that  judg- 
ments of  other  states  have  equal  validity  with  domestic  judg- 
ments. If  contested,  it  must  be  upon  the  plea  of  nul  tid 
record,  or  by  special  plea  setting  up  a  want  of  jurisdiction  of 
the  court,  or  of  the  state  in  which  judgment  was  rendered 
over  the  person  or  property  to  be  affected  by  the  judgment. 
The  merits  of  them  cannot  be  inquired  into  upon  plea  of  nil 
debet.  That  plea  is  therefore  bad  to  the  same  extent  as  when 
pleaded  to  any  other  record  or  specialty.  Moulin  v.  Insu- 
rance Co.,  4  Zab.  223 ;  Qilmore  v.  Lewis,  Ib.  246.  But  is  the 
plea  a  nullity,  so  that  judgment  may  be  entered  as  for  want  of 
a  plea?  The  plaintiff  cannot  take  issue  upon  the  plea  without 
opening  to  inquiry  the  merits  of  his  judgment.  He  must 
either  demur,  move  to  strike  out,  or  sign  judgment. 

In  note  3  to  the  case  of  Jones  v.  Pope,  1  Saund.  R.  38,  it  is 
said,  that  when  the  action  is  founded  upon  a  record,  nil  debet 
is  no  plea. 

There  are  some  authorities  to  the  effect,  that  though  a  bad 
plea,  it  is  not  a  nullity.  Tidd's  Pr.  586  ;  2  Chitty's  Rep.  239.* 
I  find  no  American  authorities.  The  question  must  therefore 
be  settled  upon  principles  adapted  to  the  present  rules  of 
pleading  and  practice  in  New  Jersey,  and  the  policy  out  of 
which  they  grow. 

The  legislation  of  the  last  twenty  years  shows  that  two 
objects  have  been  in  view ;  one  to  relieve  debtors  from  exe- 
cution against  the  person,  and  the  other  to  give  creditors  a 
prompt  remedy  against  property.  In  adapting  the  practice 
to  this  policy,  the  plaintiff,  especially  in  actions  ex  contractu, 
should  not  be  delayed  by  requiring  demurrer  or  motion  to 
get  rid  of  a  plea,  which  is  no  answer  to  the  declaration,  and 
which  has  been  held  bad  in  substance  so  often  that  on  demur- 
rer an  argument  would  not  be  allowed. 

It  was  insisted,  upon  the  argument,  that  the  plea  and  notice 
made  a  good  answer  to  the  declaration,  and  that  the  plea  for 
the  purpose  of  admitting  the  notice  should  be  considered  the 

*Paters<m  v.  Everard. 


220          NEW  JERSEY  SUPREME  COURT. 


Randall  v.  Roc-lie. 


general  issue,  seeing  that  nul  ticl  record  would  not  serve  for 
that  use,  as  it  tendered  an  issue  to  l>e  tried  only  by  the  court. 
This  question  was  considered  by  the  Supreme  Court  of  New 
York,  in  the  case  of  Bullis  v.  Guldens,  8  Johns.  Rrp.  82.  The 
action  was  on  recognizance  of  l>uil ;  the  plea  nil  debet,  to  which 
there  was  a  demurrer  and  joinder.  The  court,  after  sanction- 
ing the  above  rule,  that  ''  when  the  action  is  grounded  upon  a 
record  or  si>eeialty  "  nil  dcbet  is  no  plea,  proceed  to  say,  "  that 
although  this  rule  may  deprive  defendants  in  such  cases  of 
pleading  the  general  issue  with  notice  of  special  matter,  it  does 
not  preclude  them  from  pleading  specially  any  matter  which 
thev  may  have  to  set  up  in  their  defence ;  and  this  inconvenience 
had  better  be  submitted  to  than  to  innovate  upon  the  estab- 
lished rules  of  pleading."  Subsequently,  by  statute  of  New 
York,  such  pleading  with  notice  was  made  legal.  As  the  law 
now  stands  in  New  Jersey,  I  am  of  opinion  that  the  plaintiff 
had  the  right  to  disregard  the  plea  and  enter  judgment.  The 
rule  should  be  discharged  ;  but  as  the  question  is  new,  if  the  de- 
fendant has  merits,  the  judgment  will  on  application  be  opened, 
and  leave  given  to  plead  anew  on  payment  of  costs. 

Judgment  set  aside  with  costs. 


RANDALL  AND  MORELL  v.  ROCHE  AND  CREEDE. 

1.  The  vessel  lien  law  of  this  xtute  applies  as  well  to  foreign  as  to  domes- 
tic vencU. 

2.  A  lien  for  nupplic*  furnished  to  a  foreign  vessel,  on  the  bredit  of  one 
of  the  owner*  or  tin-  IHM-I.T.  <lu,  s  not  create  a  maritime  lien  on  the 
vcwcl  within  the  jurisdiction  of  the  United  States  courts  of  admiralty, 
and  may  be  enforce*!  in  the  courts  of  this  state. 


This  was  a  demurrer  to  certain   pleas,  the  particulars  of 
which  sufficiently  ajijw.ii  in  the  opinion  delivered. 

Argued  at  February  term,  1802,  before  the  CHIEF  JUSTICE 

and  .Iu-ti.  •  -  1  J.MI.I:  and  VANDYKE. 


NOVEMBER  TERM,  1862.  221 


Randall  v.  Roche. 


For  the  plaintiff,  I.  W.  Scudder. 
For  the  defendant,  JR.  Gilchiist. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  The  action  in  this  case  is  upon  a  bond  given 
under  the  twelfth  section  of  the  act  entitled,  "  an  act  for  the 
collection  of  demands  against  ships,  steamboats,  and  other 
vessels."  3  Nix.  Dig.  529.*  The  pleas  demurred  to  aver,  in 
substance,  that  the  vessel  in  question,  called  the  Pope  Catlin, 
was  a  foreign  vessel,  enrolled  in  the  state  of  New  York,  and 
owned  by  Roche,  one  of  the  defendants,  the  master  of  said 
vessel,  and  another  person,  both  of  whom  resided  in  New 
York,  and  not  in  New  Jersey.  It  was  insisted  by  the  counsel 
for  the  defendants,  that  the  act  above  referred  to  does  not 
apply  to  such  vessels ;  and  if  it  does,  that,  so  far  as  it  pur- 
ports to  give  a  lien  for  supplies  furnished  to  a  vessel  engaged 
in  commerce  and  navigation  between  different  states,  it  is  in 
conflict  with  the  constitution  and  laws  of  the  United  States, 
which  give  exclusive  jurisdiction  of  admiralty  and  maritime 
causes  to  the  courts  of  the  United  States. 

The  terms  of  the  act  certainly  include  all  descriptions  of 
vessels,  and  however  impolitic  such  lien  laws  may  be  justly 
regarded,  they  are,  at  present,  evidently  much  in  favor  with 
those  who  control  our  state  legislation,  and  whether  wise  or 
unwise,  must  be  enforced  according  to  their  true  intention  by 
our  courts.  The  act  is  copied  from  the  New  York  law,  where 
it  has  always  been  regarded  as  applying  to  foreign  vessels; 
indeed,  for  many  years,  only  such  vessels  were  affected  by 
it.  17  Johns.  K  54  ;f  1  Wend.  557  ;J  5  Hill  34  ;§  3  Selden 
508. ||  Similar  laws  exist  in  many  of  the  eastern  and  western 
states. 

In  regard  to  the  conflict  of  jurisdiction,  none  of  the  pleas 
show  that  the  lien  sought  to  be  enforced  was  within  the  ju- 

*Rev.,  p.  586.  •fSirbeck  v.  Ferry  Boats.  $  Walker  v.  Blachwell.  $Many 
v.  Noyes.  \\Pendleton  v.  Franklyn. 

VOL.  i.  o 


222          NEW  JERSEY  SUPREME  COURT. 

Randall  v.  Roche. 

risdietion  of  the  admiralty.  The  debt  was  contracted  by 
Roche,  the  master  of  the  vessel,  and  the  pleas  show  that  he 
was  also  one  of  the  owners.  By  the  maritime  law  of  this 
country,  where  a  master  obtains  supplies  in  a  foreign  port, 
(and  a  port  in  a  different  state  from  that  in  which  the  vessel 
is  owned,  is  for  this  purpose  held  to  be  a  foreign  port,)  which 
are  necessary  to  enable  the  vessel  to  proceed,  it  is  presumed 
that  he  makes  the  contract  on  the  credit  of  the  vessel,  and 
then-  is  a  lien  which  will  be  enforced  by  the  admiralty  courts; 
but  if  the  supplies  were  obtained  by  an  owner  or  part  owner, 
or  if  the  master  obtains  them  on  his  own  credit,  they  are 
not  liens.  The  Virgin,  8  Peters  538;  Thomas  v.  Osborn,  19 
How.  22. 

It  will  not  be  necessary  in  this  case  to  decide  whether  a 
proper  maritime  lien  can  be  enforced  in  any  other  mode  than 
by  a  proceeding  in  admiralty  ;  and  in  view  of  the  difficulties 
which  beset  the  whole  subject,  and  the  diversity  of  opinion 
which  has  hitherto  prevailed  among  the  judges  of  the  Supreme 
Court  of  the  United  States,  it  is  best  to  express  no  opinion. 
See  Jackson  v.  Steamboat  Maynolia,  20  How.  393,  and  Taylvr 
v.  Ctryl,  20  How.  583.  But  if  it  be  admitted  that  the  state 
courts  have  no  jurisdiction  in  such  a  case,  to  divest  the  state 
courts  it  must  be  clearly  shown  that  the  lien  in  question  was 
of  that  description.  The  facts  stated  raise  no  such  presump- 
tion, nor  is  it  averred  in  terms  that  the  lien  was  one  that  came 
within  the  jurisdiction  of  the  admiralty. 

Judge  Story,  in  the  case  of  the  Bark  Chusan,  2  Story 8  Rep. 
•161,  has  made  some  observations  which  would  seem  to  imply 
that  he  considered  the  New  York  statute  would  be  unconsti- 
tutional if  applied  to  a  foreign  vessel.  Judge  Nelson,  how- 
ever, in  the  case  of  The  (ilotn-,  2  Mitch.  C.  R.  430,  takes  a 
different  view  of  it,  and  treats  it  as  creating  a  good  lien.  He 
notices  Story's  remark,  and  says:  "but  this  remark  was  made 
in  answer  to  the  argument  that  the  statute  controlled  the  juris- 
diction of  (he  admiralty,  and  in  that  view  the  statute  would 
have  IM-CH  unconstitutional." 

Chief  Justice-  Wntkins,  in  the  ca*e  of  Mcrrick  v.  Avcry,  14 


NOVEMBER  TERM,  1862.  223 


Kandall  v.  Roche. 


Ark.  378,  gives  an  able  opinion  on  the  lien  law  of  Arkansas, 
and  remarks,  correctly  I  think,  that  the  beneficial  operation 
of  that  law  was  to  extend  the  privilege  of  the  maritime  lien 
upon  seagoing  vessels,  for  their  building  or  equipment  in  do- 
mestic ports,  just  as  that  lien  existed  in  Europe,  and  would 
have  prevailed  in  England,  and  so  descended  to  this  country, 
but  for  the  jealousy  of  the  common  law. 

It  was  urged,  by  counsel,  that  the  provision  in  the  constitu- 
tion of  the  United  States,  giving  to  congress  the  power  to 
regulate  commerce  with  foreign  nations  and  among  the  sev- 
eral states,  would  exclude  this  lien  from  state  cognizance. 
Much  of  the  difficulty  on  the  subject  probably  has  arisen 
from  confounding  this  clause  with  that  giving  jurisdiction  to 
the  federal  courts  in  admiralty.  If  the  legislative  power 
given  to  congress  to  regulate  commerce  had  been  held  to  be 
exclusive,  as  is  perhaps  the  better  opinion,  it  would  have 
covered  the  whole  case,  and  no  state  legislature  could  create 
a  new  maritime  lien,  or  in  any  way  interfere  with  foreign 
commerce  or  commerce  between  the  states.  Such,  however, 
is  not  the  doctrine  of  the  Supreme  Court.  That  court  holds 
the  power  over  commerce  to  be,  so  far  as  it  is  exercised,  para- 
mount to  state  legislation ;  but  the  power  of  the  state  remains 
in  other  cases  untouched,  so  that  what  congress  has  not  regu- 
lated each  state  may  regulate  for  itself  within  its  own  terri- 
tory. As  the  constitution  is  now  construed,  congress  may 
declare  what  debts  shall  be  liens  on  foreign  vessels,  and  that 
no  others  shall  be,  and  thus  render  maritime  liens  uniform 
throughout  the  Union ;  and  it  will  probably  not  be  long  be- 
fore it  will  be  found  indispensable  to  do  this.  Large  foreign 
ships  are  now  liable  to  be  seized  by  attachments  and  other 
state  process,  in  such  manner  as  may  seriously  embarrass  com- 
merce. But  until  this  is  done,  the  states  may  create  new  liens 
on  vessels  and  enforce  them. 

What  are  properly  admiralty  and  maritime  causes,  it  has 
been  found  very  difficult  to  define,  and  cannot  be  said  yet  to 
be  definitely  settled.  In  its  nature,  however,  the  admiralty 
jurisdiction  is  exclusive.  But  it  is  jurisdiction  over  ad  mi- 


224          NEW  JERSEY  SUPREME  COURT. 

Randall  v.  Roche. 

ralty  causes,  and  not  jurisdiction  over  all  causes  affecting  for- 
eign vessels,  or  over  all  liens  on  such.  At  one  time  the  ad- 
miralty courts  enforced  liens  exclusively  of  state  creation,  a 
practice  now  abandoned  as  untenable.  Allen  v.  Newberry,  21 
How.  245 ;  Ib.  249,  Maguire  v.  Card.  If  a  cause  does  not 
belong  to  the  admiralty  courts,  they  cannot  interfere.  When 
it  does,  the  states  cannot  abridge  or  in  any  way  control  it. 
In  all  cases  the  common  law  remedies  remain,  and  may  be 
resorted  to  in  the  state  courts.  What  is  a  common  law  rem- 
edy, and  how  far  the  state  laws  may  change  the  course  of  pro- 
ceeding, are  difficult  questions  I  shall  not  now  examine.  A 
debt  constituting  a  maritime  lien  may  be  collected  by  a  com- 
mon law  remedy,  but  admiralty  proceedings  cannot  be  insti- 
tuted in  state  courts.  Any  cause  of  action  which  does  not 
constitute  an  admiralty  cause  within  the  decisions  of  the  Su- 
preme Court  of  the  United  States,  is  not  affected  by  the  con- 
stitution of  the  United  States.  The  state  legislation  may 
provide  new  liens  and  new  remedies  for  such  causes  in  all 
cases  of  vessels  or  parties  coming  within  its  territory,  and 
thereby  l>eeoming  subject  to  its  laws.  It  is  simply  a  contra- 
diction in  terms  t<>  say  that  a  cause  which  is  not  an  admiralty 
or  maritime  cause  belongs  exclusively  to  a  jurisdiction  which 
is  confined  to  such  anises,  and  can  embrace  no  others. 

I  am  of  opinion  that  the  demurrers  are  well  taken,  and 
that  the  pleas  are  bad. 

The  CHIKP  JUSTICE,  and  HAINES  and  VAN  DYKE,  Jus- 
tice»,  concurred. 

CITED  in  Edward*  ct  aL  v.  Elliott,  7  Vroom  464. 


CASES  DETERMINED 

IN  THE 

SUPREME  COURT  OF  JUDICATURE 

OP  THE 

STATE  OF  NEW  JERSEY, 
AT  FEBRUARY  TERM,  1863. 


THE  STATE,  THE  HOBOKEN  AND  WEEHAWKEN  HOESE 
EAILKOAD  COMPANY,  PKOSECUTORS,  v.  THE  MAYOR 
AND  COMMON  COUNCIL  OF  THE  CITY  OF  HOBOKEN. 

1.  Ordinances  of  the  mayor  and  common  council  of  the  city  of  Hoboken, 
prescribing  the  mode  and  times  of  running  horse  cars  through  the 
streets  of  said  city  by  any  corporation  which  has  laid  rails  for  the  pur- 
pose of  running  horse  cars  thereon,  and  also  that  a  license  shall  be  first 
taken  out  under  certain  penalties  therein  mentioned,  held  invalid 
against  the  prosecutors,  holding  under  their  charter  and  also  under 
anterior  rights  derived  from  the  Bergen  Turnpike  Company,  such 
company  having  the  right  to  lay  rails  through  the  city  without  the 
consent  of  the  city  council. 

2.  The  supplement  to  the  charter  of  the  city  of  Hudson,  of  the  15th 
March,  1861,  authorizing  the  common  council  to  grant  permission  to 
any  persons  or  corporations  to  lay  railroad  tracks  through  the  streets, 
and  run  cars  on  them,  under  such  licenses  and  conditions  as  the  said 
council  should  think  proper,  and  subject  to  be  revoked  at  pleasure, 
held  to  be  prospective,  and  not  to  affect  existing  rights. 


On  certiorari  to  remove  certain  ordinances,  passed  by  the 
mayor  and  common  council  of  the  city  of  Hoboken,  providing 
for  the  laying  of  railroad  tracks,  and  running  of  railroad  cars 
thereon,  in  the  city  of  Hoboken. 

225 


226          NEW  JERSEY  SUPREME  COURT. 


State  v.  Council  of  Iloboken. 


The  case  was  argued  by  A.  0.  Zabrfokie,  for  the  prosecutors, 
and  by  F.  B.  Oyden  and  /.  //.  Lyon,  for  the  defendants. 

The  opinion  of  the  court  was  delivered  by 

BROWN,  J.  The  c&'liorari  in  this  case  brings  up  for  review 
an  ordinance  | Kissed  by  the  council  of  the  city  of  Hoboken, 
on  tlie  26th  of  June,  1861,  and  two  supplements  to  the  same. 
The  prosecutors,  who  have  laid  rails  in  the  city  for  the  pur- 
pose of  running  horse  cars,  complain  that  the  third,  fourth, 
and  seventh  sections  of  the  ordinance  and  the  supplements 
injuriously  aflect  their  interests,  and  that  they  are  illegal. 

The  third  section  enacts,  that  any  corporation  which  has 
laid  rails  for  such  pur|>ose  shall  run  a  car  each  way  every  day, 
every  half  hour,  between  the  hours  of  six  in  the  morning  and 
ten  at  night;  the  fourth,  that  such  corporation  shall  pay  fees 
for  license  to  run  airs;  and  the  seventh,  that  such  corporation 
shall  always  keep  an  office  in  the  city,  for  the  purpose  of 
transacting  their  business.  The  first  supplement,  approved 
December  5th,  1861,  provides,  that  if  any  horse  car  shall  be 
run  ti|K>n  any  track  within  the  city  without  license,  the 
owner  shall  U-  liable  to  a  |>enalty  of  fifty  dollars.  The  second, 
approved  January  29th,  1862,  provides  a  penalty  for  neglect- 
ing to  comply  with  the  directions  of  the  third  and  seventh 
Motions. 

If  the  mayor  and  council  of  the  city  had  such  power  of 
legislation  over  the  railroad  company,  it  must  be  found  either 
as  a  condition  annexed  to  the  grant  of  the  franchise  to  the 
latter  company,  or  in  the  grant  of  legislative  power  to  the  city 
by  the  legislature  of  the  state. 

And  first,  are  the  ordinance  and  supplements  legal  by 
rvuHon  of  conditions  annexed  to  the  grant  to  the  railroad  com- 
pany •>!'  tin-  right  to  lay  mils? 

In  order  to  answer  this  question,  it  is  necessary  to  ascer- 
tain tin-  origin  of  the  right  of  the  prosecutor  to  lay  rails  in 
the  city. 

It  ap|M*ar»  that,  in  1859,  John  II.  Bonn  and  others  made 
themselves  u  corporation,  HO  far  as  they  could  do  so,  under 


FEBRUARY  TERM,  1863.  227 

State  v.  Council  of  Hoboken. 

the  acts  for  establishing  manufacturing  companies  and  the 
supplements  thereto,  under  the  name  of  the  Hoboken  and 
"Weehawken  Horse  Railroad  Company,  and  were  authorized, 
by  ordinance  of  the  city  council,  passed  January  3d,  1860,  to 
lay  tracks  and  rails,  and  run  cars  through  the  city.  Various 
regulations  of  the  right  granted  were  inserted  in  the  ordi- 
nance, and,  among  others,  three  sections,  similar  to  the  third, 
fourth  and  seventh  of  the  ordinance  of  June  26th,  1861, 
which  vary  only  the  amount  of  the  license  fee  and  the  time  of 
running  cars. 

It  was  further  provided,  by  the  12th  section  of  this  ordi- 
nance of  1860,  that  it  should  not  be  binding  on  the  city  nor 
go  into  eifect  until  the  railroad  company  executed  such  an 
instrument  in  writing,  agreeing,  on  their  part;  to  perform  all 
the  conditions  and  requirements  of  the  ordinance,  as  should 
be  approved  by  the  mayor  and  corporation  attorney,  and  not 
until  such  instrument  and  approval  should  be  filed  by  the 
city  clerk. 

The  railroad  company  did  not  comply  with  the  terms  of 
this  twelfth  section,  and  therefore  did  not  acquire  any  right 
by  virtue  of  the  ordinance,  nor  were  they  subject  to  its  pro- 
visions. 

On  the  fourteenth  of  February,  1860,  the  prosecutors  were 
incorporated  by  special  act  of  the  legislature.  In  the  pre- 
amble to  the  act,  the  organization  under  the  laws  for  incor- 
porating manufacturing  companies  and  the  ordinance  of 
January,  1860,  are  referred  to,  and,  by  the  seventh  section, 
the  company  are  invested  with  all  the  powers  necessary  to  sur- 
vey, lay  out,  construct,  and  operate  a  horse  railroad,  from  some 
point  in  the  city  near  the  ferry  gates,  "  through  such  streets 
of  the  city  as  by  said  ordinance  are  designated  ;"  and  by  the 
16th  section,  the  said  "ordinance  is  confirmed  and  declared 
valid  and  effectual  to  grant  to  the  said  company  the  rights, 
privileges  and  franchises  therein  given  and  granted,  and 
that  the  same  shall  be  so  construed  in  all  courts  and  places ; 
provided  however,  that  nothing  herein  contained  shall  pre- 
vent the  said  the  mayor  and  council  of  said  vity,  with  the 


228          NEW  JERSKY  SUPREME  COURT. 


State  v.  Council  of  Hoboken. 


consent  of  said  company,  from  passing  and  approving  an  ordi- 
nance, and  they  are  hereby  authorized  to  pass  and  approve 
•  an  ordinance  altering  the  said  terms,  conditions,  and  stipula- 
tions in  the  said  ordinance  contained." 

It  would  be,  perhaps  difficult  to  determine  whether  the 
legislature  intended,  by  this  16th  section,  to  incorporate  the 
provisions  of  the  ordinance,  and  make  it  in  effect  a  part  of 
the  charter  or  not.  If  they  did,  the  words  are  inapt  for 
that  purpose.  But  it  is  not  necessary  to  decide  whether  it 
is  binding  upon  the  railroad  company  or  not.  That  ordi- 
nance is  not  before  us  for  review;  and  assuming  that  it  is 
valid  and  binding  upon  the  railroad  company  in  all  its  fea- 
tures, it  does  not  give  any  authority  to  pass  any  other  ordi- 
nance on  the  same  subject  containing  the  same  or  different 
provisions.  The  city  council,  by  the  terms  of  the  16th  sec- 
tion, can  pass  no  ordinance  affecting  the  interests  of  the  rail- 
road company  without  their  consent.  The  ordinance  of  1861 
and  the  supplements  vary  in  material  respects  that  of  1860, 
and  so  far  at  least  are  clearly  illegal,  without  reference  to  what 
follows  in  the  next  section  of  the  charter.  By  that  section  it 
is  enacted  that  nothing  contained  in  it  shall  prejudice  the 
rights  now  vested  in  the  Bergen  Turnpike  Company,  but  the 
said  railroad  company  may  exercise  not  only  the  powers  given, 
but  with  the  consent  and  mutual  contract  of  said  company  and 
the  Bergen  Turnpike  Company,  may  purch;ise,  lease,  and  use 
for  a  consideration!  and  hold,  enjoy  and  exercise  all  the  fran- 
chises and  {lowers  given  to  the  Bergen  Turnpike  Company  by 
a  supplement  to  their  charter,  approved  March  5th,  1858. 
&'«w'cm  Lawn  21.'J. 

By  this  supplement,  the  turnpike  company  are  authorized 
to  lay  down  upon  their  nud,  or  any  part  thereof,  such  track 
or  track*  of  iron  rails  as  they  may  deem  necessary;  and  that 
they  -|i:i||  have  power  to  purchase,  with  the  funds  of  the 
company,  mirh  mr»,  horses,  Are.,  as  may  be  proper  and  neces- 
sary to  run  on  said  tracks. 

By  a  statement  of  facts  filed  with  the  papers  in  the  case, 
not  ttigiiixl,  but  which  is  understood  to  be  agreed  to  by  the 


FEBRUARY  TERM,  1863.  229 

State  v.  Council  of  Hoboken. 

parties,  it  appears  that  the  railroad  company  did,  in  1860, 
lease  from  the  turnpike  company  their  franchise,  and  that 
the  rails  of  the  prosecutors'  road  in  Hoboken  are  laid  upon 
the  turnpike  road,  as  laid  out  and  constructed  fifty  years  ago, 
and  that  the  tracks  were  laid  by  the  prosecutors,  by  virtue  of 
their  charter  and  the  lease  to  them  from  the  turnpike  com- 
pany. 

By  this  lease,  the  railroad  company  acquired  the  right  to 
lay  rails  independently  of  the  ordinance  of  1860,  and  with- 
out the  consent  of  the  city  council.  This  right  is  not  aifected 
by  any  condition  in  the  charter  of  the  prosecutors,  if  such 
condition  was  intended  to  be  imposed. 

2.  Has  the  legislation  of  the  state  given  to  the  city  author- 
ities such  power  over  this  railroad  company  as  is  attempted  to 
be  exercised  by  the  ordinance  of  1861  ? 

The  charter  of  the  city  gives  all  the  usual  municipal  pow- 
ers of  legislation,  as  to  establishing  a  police,  for  promoting 
the  health  and  safety  of  the  city,  for  providing  and  regulating 
lights,  water,  streets,  removing  nuisances,  licensing  hack  and 
omnibus  drivel's,  &c.,  and  many  other  matters,  but  none  which 
include  such  legislation  as  is  contained  in  the  ordinance  of 
1861. 

But  it  is  contended  that  such  power  is  given  by  the  llth 
section  of  a  supplement  to  the  city  charter,  passed  March  15th, 
1861.  Session  Laws,  526. 

By  this  section,  it  is  enacted,  that  "  it  shall  be  lawful  for 
the  council,  by  general  ordinance,  to  grant  permission  to  any 
person  or  persons,  or  corporation,  to  lay  railroad  tracks  and 
run  cars  thereon  in  and  over  any  street  or  highway  within 
said  city,  under  such  licenses,  conditions,  and  restrictions  as 
the  said  council  may  think  proper,  and  to  alter,  change,  or  re- 
voke the  same  at  pleasure;  provided,  that  no  such  grant  or 
permission  shall  be  made  or  given  until  a  majority  of  the 
property  owners  along  the  line  of  such  street  or  highway 
shall  have  first  given  their  consent  in  writing  for  such  rail- 
way track  to  be  laid." 

The    right   to    lay  the  railroad  tracks  of    the  prosecutors 


230         NEW  JERSEY  SUPREME  COURT. 

Harwood  ads.  Smethurst. 

existed,  ami  they  were  in  fact  laid,  as  appears  by  the  state  of 
facts  above  referral  to  before  the  passage  of  this  supple- 
ment, and  it  is  manifest  that  this  right  and  these  tracks  are 
not  intended  to  be  affected  by  it.  The  terms  of  the  whole 
section  show  that  it  was  intended  to  l>e  prospective  only,  and 
it  therefore  gives  no  power  whatever  over  existing  rights  or 
roads. 

The  sections  of  the  ordinance  of  1861,  and  such  parts  of 
the  supplements  as  are  above  referred  to,  should  be  declared 
void,  so  far  as  they  affect  the  prosecutors  in  this  case. 

Order  accordingly. 

ClTED  in  North  Hudson  Co.  RaUway  v.  Hoboken,  12  Vroom  77.  . 


HARWOOD  ADS.  SMETHURST. 

1.  Service  of  a  notice  of  trial  at  the  office  of  the  attorney,  who  was  ab- 
sent in  Europe,  and  on  the  plaintiff"  also,  Field  good. 

2.  The  defendant  noticed  for  trial  an  action  of  replevin  ;  the  plaintiff  not 
appearing,  a  verdict  was  taken  for  defendant.      Held  irregular,  and 
verdict  set  aside.     A  nonsuit  should  have  been  entered,  and  the  dam- 
ages then  a-MM-ssed. 

3.  An  ••!  purte  affidavit  allowed  to  be  read  on  the  motion  to  set  aside  ver- 
dict. 


Argued  before  Justices  HAINES  and  ELMER. 

This  is  the  action  of  replevin,  reported  5  Dutclif-r  195,  the 
defendant  having  noticed  the  case  for  trial,  and  taken  a  ver- 
dict, in  the  ul*»«Miee  of  the  plaintiff,  at  the  December  Cape 
May  Circuit. 

A.  Browning,  for  plaintiff,  moved  to  set  the  verdict  aside  as 
irregular,  und  insisted  thai  the  defendant  ought  to  prove  the 
not  in-  of  trial  now.  He  ref'rrred-to  1  Haht.  151  ;  Nix.  Dig. 
624,  §  4;  2  Arck.  Pi-nc.  72;  1  IJY/*on  300;  2  Sound.  336, 
b.f  I  B.  <v  ('.  110;  /Amu*  458. 

F.    Kinynum,    for   defendant,   referred    to   3    Ilwr.    297. 


FEBRUARY  TERM,  1863.  231 


Harwood  ads.  Smethurst. 


He  asked  to  have  the  postea  amended  by  entering  a  nonsuit 
and  entering  an  assessment  of  the  damages,  as  was  done  in 
the  cases  cited  on  the  other  side. 

The  judge  before  whom  the  case  was  tried  reported  that 
Mr.  Woodhull  informed  the  court  that  the  plaintiff  was  not 
present,  and  no  counsel  appeared  for  him.  The  defendant's 
attorney  then  produced  an  affidavit  that  he  had  served  a 
notice  of  trial  in  due  time,  by  leaving  the  same  at  the  office 
of  plaintiff's  attorney,  in  Camden,  with  a  gentleman  in 
charge  named  Gilbert,  the  attorney  being  absent  out  of  the 
state.  He  also  stated  that  when  he  asked  Mr.  Gilbert  if 
that  was  Mr.  Dudley's  office,  he  answered  it  was;  but  when 
he  handed  him  the  notice  of  trial,  he  declined  receiving  it, 
saying  he  had  no  authority  to  do  so.  It  was  a  fact  of  gen- 
eral notoriety  that  Mr.  Dudley,  who  stood  on  the  record  as 
plaintiff's  attorney,  had  been  absent  more  than  a  year,  and 
held  the  office  of  United  States  consul  at  Liverpool,  England. 
The  notice  was  also  served  in  due  time  on  the  plaintiff  in 
person,  and  on  Mr.  Browning,  who  had  acted  as  plaintiff's 
counsel,  and  had  the  case  in  charge.  The  court  then  de- 
cided that  the  notice  of  trial  had  been  properly  served,  and 
ordered  on  the  trial.  Mr.  Woodhull  then  produced  an  affi- 
davit of  Mr.  Browning,  setting  forth  his  inability  to  attend 
the  circuit,  in  consequence  of  the  effect  of  an  accident, 
whereby  his  limb  had  been  broken,  and  praying  an  adjourn- 
ment. Mr.  Kingman,  stating  that  he  proposed  to  take  a 
verdict  for  nominal  damages,  the  court  allowed  him  to  pro- 
ceed subject  to  the  opinion  of  the  court  at  bar.  The  court 
also  expressed  a  doubt  whether  the  true  course  was  not  to 
enter  a  nonsuit,  the  plaintiff  not  being  in  court,  but  Mr. 
Kingman  insisted  upon  taking  a  verdict.  The  issue  to  be 
tried  being  on  the  plea  of  non  cepit,  and  there  being  no  proof 
of  a  taking,  the  jury  was  directed  to  find  a  verdict  for  de- 
fendant, and  to  assess  his  damages  at  six  cents,  with  six  cents 
costs. 


232          NEW  JERSEY  SUPREME  COURT. 


Harwood  ads.  Sna-thurst. 


The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  We  think  there  is  no  necessity  for  the  de- 
fendant to  prove  his  notice  of  trial  here,  that  having  been 
done  to  the  satisfaction  of  the  court  at  the  circuit.  The 
regularity  of  the  notice  may  however  be  reviewed  here,  as 
other  decisions  at  the  circuit  are  reviewed,  upon  the  applica- 
tion of  the  party  \\ho  complains.  This,  we  suppose,  is  the 
mean  in-  of  I  he  case  of  Boqua  v.  Ware,  1  Hoist.  151. 

The  decision  of  the  judge,  as  to  the  sufficiency  of  the  notice, 
we  think  was  correct.  It  is  held  in  England  that,  if  the 
attorney '>  place  of  abode  be  unknown,  the  notice  may  be  served 
on  the  party.  Tidd's  Pr.  753.  In  this  case  the  attorney  on 
the  rmml,  although  absent  in  the  fulfilment  of  a  public  duty, 
kept  his  office  in  this  state  open,  and  we  have  no  evidence 
that  he  had  "  ceased  to  act,"  within  the  meaning  of  the  statute. 
Nir.  Dig.  624,  §  4.*  It  would  be  unjust  to  him  so  to  hold 
UJKMI  the  mere  ground  of  his  absence.  Had  he  chosen  in  fact 
to  withdraw  from  the  case,  the  plaintiff' could  have  substituted 
another  attorney  ;  but  having  neglected  to  do  this,  we  do  not 
think  he  should  be  permitted  to  object  to  a  notice,  of  which 
lie  was  in  due  time  fully  apprized. 

The  verdict  is  clearly  irregular.  There  cannot  be  a  judg- 
ment, as  in  case  of  a  nonsuit  under  the  statute,  for  not  going 
to  trial,  l>ecause  in  replevin  the  defendant  may  notice  the  cause 
himself;  Broderick  ads.  Aincs,  3  Hurr.  297  ;  but  all  the  cast* 
and  books  of  practice  show  that,  if  the  plaintiff  does  not  ap- 
pear, in  cases  not  within  the  statute,  Nix.  Dig.  694,  §  13,  the 
regular  course  is  to  enter  a  nonsuit,  and  then  proceed  to  assess 
the  damages,  by  means  of  the  jury  in  the  box  or  by  a  writ  of 
inquiry,  in  pursuance  of  the  .-taiutc.  Nix.  Dig.  274,  §  12,f 
in  Hilxstaiice  the  same  as  21  Hen.  8,  c.  19  ;  Harcowt  v.  Wcrkes, 
6  J/'x/.  77.  Whether  the  damages  thus  assessed  may  be 
actual  damages,  aa  compensation  for  trouble  and  expense,  we 
jure  not  called  on  to  decide.  Sex-  &iU;.  95. 

The  mode  of  proceeding,   however,  is  so  purely  formal 

•  Ret.,  p.  849,  {  fl.     f  Itcc.,  p.  975,  {  27,  amended. 


FEBRUARY  TERM,  1863.  233 

Council  of  Jersey  City  v.  Chase. 

that  we  should  not  hesitate  to  follow  the  precedents  referred 
to,  by  refusing  to  set  the  verdict  aside,  unless  the  plaintiff 
would  consent  to  a  nonsuit  being  entered,  did  it  not  appear,  as 
well  from  what  took  place  at  the  circuit  as  from  the  plain- 
tiff's affidavit,  now  produced,  that  but  for  the  indisposition 
of  his  counsel,  he  had  intended  in  good  faith  to  produce  evi- 
dence on  the  trial  he  is  advised  was  material  for  his  defence.. 
The  objections  made  to  reading  this  affidavit  we  do  not  think 
well  taken.  This  is,  we  think,  like  motions  for  a  rule  to  show 
cause  or  for  a  nonsuit,  one  of  those  matters  of  course,  excepted 
from  the  operation  of  Ride  58. 

The  verdict  must  be  set  aside  as  irregular,  the  costs  of  the 
circuit  to  abide  the  event. 


MAYOR  AND  COUNCIL  OF  JERSEY  CITY  v.  CHASE,  TAYLOR, 

AND  KEENAN. 

1.  In  an  action  on  a  constable's  bond,  a  rule  for  the  assessment  of  dam- 
ages in  open  court  or  for  a  writ  of  inquiry,  under  the  practice  act  and 
supplements,  is  not  authorized. 

2.  If  neither  party  applies  for  an  assessment  of  the  damages  by  a  jury, 
the  court  will  assess  them ;  if  either  party  does  so  apply,  a  writ  of  in- 
quiry will  be  awarded,  which  in  this  case  was  ordered  to  be  executed 
before  a  judge  at  the  circuit. 

3.  If  damages  are  claimed  for  a  person  other  than  the  original  prose- 
cutor, upon  a  special  notice,  before  the  writ  issues,  the  damages  sus- 
tained by  him  will  be  ordered  to  be  assessed  by  the  same  jury. 


This  was  an  action  of  debt  brought  upon  a  constable's  bond. 
Judgment  by  default,  for  want  of  a  plea,  was  entered  by  the 
plaintiff,  and  on  application  of  the  defendant,  a  writ  of  inquiry 
for  the  assessment  of  damages  was  ordered. 

The  plaintiff  moved  that  the  rule  for  a  writ  of  inquiry  be 
dismissed,  as  not  being  authorized  by  the  statute ;  and,  also, 
that  the  plaintiff's  damages  be  assessed  by  the  court.  It  was 
also  moved  that  the  court  assess  the  damages  alleged  to  have 
been  sustained  by  another  person  through  default  of  the  con- 
stable, due  notice  of  such  motion  having  been  given. 


234          NEW  JERSEY  SUPREME  COURT. 

Council  of  Jersey  City  v.  Chase. 

These  motions  came  011  to  be  heard  before  the  branch 
court,  at  November  term,  1862,  and  were  argued  before  Jus- 
tices HAINES,  BROWN,  and  ELMER,  by  S.  B.  Ransom,  for  the 
plaint  ill's,  and  N.  G.  Slttigltt,  for  the  defendants. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  This  is  an  action  u|>on  a  constable's  bond,  in 
which  judgment  was  entered  by  default,  for  want  of  a  plea, 
during  the  last  vacation.  Prior  to  the  entering  of  judgment, 
the  attorney  for  defendants,  having  h'led  an  affidavit,  in  pursu- 
ant of  the  supplement  to  the  practice  act  of  1858,  3  Nix.  Dig. 
683,  §  247,*  entered  a  rule  for  a  writ  of  inquiry.  On  behalf 
of  the  plaintitfs,  it  is  now  moved  to  strike  out  this  rule  as 
unauthorized,  and  that  the  damages  sustained  by  the  prosecu- 
tors of  the  bond,  and  set  forth  in  the  declaration,  be  assessed 
by  the  court.  A  motion,  upon  special  notice,  has  also  l>een 
made,  that  the  court  assess  the  damages  alleged  to  be  sustained 
by  another  person,  by  reason  of  a  default  of  the  constable. 

It  is  plain  that  the  several  provisions  of  the  practice  act, 
and  the  supplements  thereto,  3  Nix.  Dig.  663,  §  112;  683,  § 
247,f  do  not  apply  to  the  case  of  an  action  on  a  bond  with 
a  special  condition,  and  that  the  defendant's  rule  must  be 
vacated. 

By  the  third  section  of  the  act  respecting  constables,  Nix. 
Dig.  119,|  it  is  enacted  that  actions  on  their  bonds  shall  be 
conducted  and  prosecuted,  in  every  res|)ect,  as  suits  on  sher- 
iff's bonds  are  by  law  directed  to  be  prosecuted.  This  court 
held,  in  the  case  of  The  Slate  v.  Hamilton  and  Edsall,  5  HaM. 
190,  that  no  assignment  of  the  breaches  on  the  record  was 
necessary  in  such  a  case,  but  that  the  uniform  practice  was  for 
the  <rourt  to  assess  the  damages.  Now  such  breaches  as  show 
that  the  condition  of  the  bond  has  been  broken,  are  required 
to  be  assigned  in  the  declaration,  Nix.  Dig.  638,  §  148,§  and 
this  has  IK-CII  done  in  the  present  case. 

The  fourth  section   of   the  act  resj>ecting  constables  pro- 


•Rn  ,  p.  872,  $  161.    ^Rev.,  p.  872,  {  151.    tR*,.,  p.  149,  $  3.    $  Jfer.,  p. 
868,  |  12o. 


FEBRUARY  TERM,  1863.  235 

Council  of  Jersey  City  v.  Chase. 

vides,  that  assessments  of  damages,  in  and  by  this  act  di- 
rected to  be  made  by  the  court,  shall  be  made  by  a  jury, 
upon  application  of  either  party  interested,  and  the  defend- 
ants now  apply  to  have  the  benefit  of  this  privilege  in  regard 
to  all  the  damages  claimed.  This  privilege,  we  think,  ap- 
plies as  well  to  the  damages  assigned  in  the  declaration,  as  to 
those  claimed  for  a  person  who  did  not  originally  join  in  the 
prosecution,  and  the  defendants  having  now  applied  to  have 
it  allowed  to  them,  we  see  no  reason  why  the  damages  may 
not  all  be  conveniently  assessed,  by  virtue  of  one  writ  of 
inquiry  framed  to  meet  the  case.  Whether  the  writ  shall  be 
executed  in  the  usual  way  by  the  sheriff  alone,  or  before  a 
judge  at  the  circuit,  is  in  the  discretion  of  the  court.  2  Arch. 
Prac.  23.  Inasmuch  as  questions  of  law  may  arise  proper 
to  be  decided  by  a  judge,  we  think  it  safest  to  order  the  writ 
to  be  executed  before  the  judge  of  the  county  in  which  the 
venue  is  laid,  at  the  regular  term  of  the  Circuit  Court.  The 
proceedings  in  actions  on  sheriffs'  and  constables'  bonds  are 
very  similar  to  those  on  bonds  to  the  Ordinary,  the  differ- 
ence being  that  in  the  latter  case  the  Prerogative  Court  as- 
certains and  directs  how  much  money  shall  be  levied  and 
made  on  the  execution,  while  in  the  former,  this  is  done  by 
the  court  in  which  the  prosecution  is.  Either  party  has  an 
absolute  right  to  have  the  assessment  made  by  a  jury  in  the 
case  of  a  constable's  bond;  but  in  the  case  of  a  sheriff's  bond 
this  court  will  assess  the  damages,  unless  for  special  reasons 
a  jury  shall  be  allowed.  In  both  cases  the  judgment  is  en- 
tered for  the  penalty  and  costs,  and  when  the  damages  are 
ascertained,  a  special  rule  will  be  made,  that  the  execution, 
which  .in  form  follows  the  judgment,  be  endorsed  to  levy  and 
make  the  sums  due  to  each  person  who  has  sustained  damages 
by  the  default  of  the  officer. 

Let  a  rule  be  entered  that  the  plaintiffs  have  leave  to 
assign  and  put  on  file  new  breaches,  applicable  to  the  case  of 
the  persons  who  are  alleged  to  have  sustained  damages  which 
are  not  assigned  in  the  declaration,  and  suggesting  the  ap- 
plication of  the  defendants  that  the  damages  be  assessed  by 


236          NEW  JERSEY  SUPREME  COURT. 

Meyer  v.  Beardsley. 

a  jury;  and  that  theivu{>on  a  writ  of  inquiry  issue,  directed 
to  the  sheriff  of  the  county  of  Hudson,  commanding  him  to 
summon  twelve  good  and  lawful  men  of  his  county  to  appear 
at  the  next  Circuit  Court  to  be  holden  in  and  for  the  said 
county ;  then  and  there,  in  the  presence  of  the  judge  of  said 
court,  to  inquire  what  damages  the  said  persons  have  respec- 
tively sustained  by  occasion  of  the  premises. 


CHRISTOPHER  MEYKR  v.  WILLIAM  BEARDSLEY,  JUN. 

1.  When  the  drawee  of  a  bill  of  exchange  writes  upon  it  "accepted,"  or 
wonls  df  like  import  and  design,  and  signs  it,  it  is  a  response  to  the 
request  therein  contained  ;  and  the  language  of  the  bill  and  the  ac- 
ceptance are  but  parts  of  one  entire  contract  in  writing,  and  the  re- 
sponsibility of  the  acceptor  is  like  that  of  a  maker  of  a  note — he  ia 
treated  as  a  primary  debtor. 

2.  The  rule  excluding  parol  evidence  tending  to  vary  the  nature  of  the 
contract,  and  convert  an  absolute  into  a  conditional  contract,  applies 
to  an  unqualified  acceptance  in  writing. 

3.  To  constitute  an  acceptance,  no  special  words  are  necessary.    The  sig- 
nature alone  of  the  drawer  across  the  face  of  the  bill  will  constitute  a 
written  acceptance. — Per  VREDKKBURGH,  J. 


This  was  an  action  of  assumpsit  brought  in  the  Middlesex 
Circuit  Court  by  William  Beardsley,  jun.,  as  endorsee, 
againnt  Christopher  Meyer,  as  acceptor  of  a  bill  of  exchange, 
drawn  on  him  by  F.  Lunt,  for  §1240,  payable  at  two  days' 
sight,  to  the  order  of  Charles  Beards  ley  and  Brothers,  dated 
at  St.  Loui*,  March  12th,  1861. 

On  the  fact?  of  the  bill,  and  across  it,  were  the  following 
word*:  "  Exempted,  April  22d,  '61.  Meyer." 

The  plaintiff  declared  UIMHI  the  bill  in  the  usual  form, 
•tiding  the  common  counts.  The  defendant  pleaded  the 
general  issue,  and  the  cause  was  tried  in  the  term  of  Sej>- 
temlx.-r,  1801.  The  draft  and  acceptance  having  been  proved, 
Ihc  defendant  offered  evidence  to  show  that  the  acceptance 


FEBRUARY  TERM,  1863.  237 

Meyer  v.  Beardsley. 

was  conditional,  and  that  the  condition  had  not  been  per- 
formed. 

The  court,  at  the  instance  of  the  plaintiff,  overruled  the 
evidence  thus  offered,  and  thereupon  a  bill  of  exceptions  was 
prayed,  and  allowed  and  sealed  by  the  court.  The  bill  of 
exceptions,  omitting  the  formal  parts,  is  as  follows : 

"  Whereupon  the  defendant  offered  to  prove  as  follows  : 

"Some  time  prior  to  the  date  of  the  draft,  the  defendant 
agreed  with  F.  Lunt,  the  drawer,  to  loan  him  five  thousand 
dollars,  to  be  secured  by  the  drawer  on  certain  real  estate  in 
St.  Louis,  where  the  drawer  resided.  The  drawer  repre- 
sented the  property  to  be  free  of  encumbrance.  Defendant 
caused  an  examination  of  the  record  of  the  title  to  be  made, 
and  ascertained  that  the  property  was  largely  encumbered 
by  judgments  and  mortgages  to  its  full  value,  or  nearly  so, 
and  declined  making  the  loan.  Lunt  thereupon  promised  to 
have  the  judgments  and  mortgages  cleared  off  and  removed, 
and  to  send  to  defendant  satisfactory  evidence  that  the 
property  was  free  from  encumbrances.  This  he  never  did, 
and  has  not  yet  done.  This  was  all  prior  to  the  date  of  the 
draft.  The  draft  was  presented  for  acceptance  about  the 
15th  of  March,  A.  D.  1861.  Defendant  refused  to  accept, 
and  gave  to  the  agent  of  the  plaintiff,  a  clerk  in  his  employ, 
who  presented  the  draft  for  acceptance,  as  a  reason,  that  the 
security  offered  by  the  drawer  was  not  satisfactory,  and  he 
had  not  sent  the  papers  he  promised.  Between  the  15th  of 
March  and  the  22d  of  April,  the  draft  was  repeatedly"  pre- 
sented by  the  same  agent  for  acceptance,  which  was  refused 
for  the  reason  above  stated.  On  the  22d  April,  the  draft 
was  again  presented  by  the  same  agent.  Defendant  at  first 
refused  to  accept  it,  but  finally,  to  avoid  the  trouble  and 
necessity  of  plaintiff  sending  the  draft  almost  daily  for  ac- 
ceptance, the  defendant  agreed  to,  and  did  accept  the  draft, 
to  be  paid  on  condition  that  the  defendant  received  from  the 
drawer  the  county  clerk's  certificate,  or  other  satisfactory 
evidence,  that  the  property  was  free  and  clear  of  encum- 
brances. In  the  interval,  between  the  15th  March  and  the 

VOL.  i.  p 


NEW  JERSEY  SUPREME  COURT. 

Meyer  v.  Beardsley. 

22d  April,  the  defendant  had  an  interview  with  the  plaintiff, 
in  which  he  explained  to  the  plaintiff  the  reason  why  he  re- 
fused to  accept  the  draft,  as  herein  before  stated.  Plaintiff 
said  we,  that  is,  Charles  Beardsley  and  Brothers,  of  whom 
plaintiff  is  one,  had  taken  the  draft  on  account  of  a  previous 
debt  due  from  Lunt.  The  draft  was  afterwards  presented  for 
payment  which  defendant  refused,  as  he  had  not  received  the 
promised  jmjwrs  or  evidence  from  Lunt,  and  the  encumbrances 
had  not  been  cleared  off  and  removed." 

The  jury  rendered  a  verdict  for  plaintiff,  under  the  direc- 
tion of  the  court,  on  which  judgment  was  entered. 

The  defendant  brought  his  writ  of  error,  and  assigned  for 
error  the  refusal  of  the  court  below  to  admit  in  evidence  the 
facts  he  had  offered  t<>  prove  as  a  defence  against  the  action. 

For  the  plaintiff  in  error,  //.  V.  Speer. 
For  the  defendant,  A.  V.  Schenck. 

CHIKF  JUSTICE.  Where  the  drawee  of  a  bill  of  exchange 
writes  ujwm  the  bill  the  word  accepted,  or  any  words  of  equiv- 
alent ini|K>rt,  and  signs  it,  it  is  a  response  to  the  request  con- 
tained in  the  bill  that  he  will  jwy  the  money  mentioned  in  it, 
and  requested  to  lx?  paid,  as  therein  directed.  The  language 
of  the  bill  and  the  acceptance  are  but  parts  of  an  entire  con- 
tract in  writing,  all  the  terms  of  which  are  expressed  in  writing 
with- just  as  much  certainty  as  if  the  acceptor  was  the  maker 
of  a  note  for  the  amount.  The  responsibilities  of  the  acceptor 
are  like  that  of  the  maker  of  a  note — he  is  treated  as  the 
primary  debtor. 

The  rule  excluding  parol  evidence  tending  to  vary  the 
nature  of  the  contract,  and  convert  an  absolute  into  a  condi- 
tional contract,  applies  in  full  force  to  an  unqualified  accept- 
ance in  writing. 

This  ac<v|>taiiec  is  an  absolute  contract  in  words  to  pay 
according  to  the  tenor  of  the  bill :  it  is  not  a  contract  implied 
by  the  law  a-*  the  result  of  a  certain  act  of  the  party,  as  an 


FEBRUARY  TERM,  1863.  239 

Meyer  v.  Beardsley. 

endorsement  of  a  note  or  bill ;  such  an  endorsement  is,  until 
filled  up,  no  contract  in  writing,  and  cannot  be  recovered 
upon.  Johnson  v.  Martinus,  4  Halst.  144;  Watkins  v.  Kirlc- 
patrick,  2  Dutcher  85 ;  Susquehanna  Bridge  and  Bank  Com- 
pany v.  Evans,  4  Washington's  C.  C.  480. 

But  none  of  the  cases  cited  support  the  position,  that  the 
express  engagement  of  the  party  to  a  bill  or  note  reduced  to 
writing  may  be  varied  by  a  contemporaneous  parol  agree- 
ment, showing  a  contract  of  a  different  legal  import.  1  Mee. 
&  Wels.  374;  Adams  v.  Wordley ;  Heaverin  v.  Donnett,  1 
Smedes  &  Mar.  244 ;  1  Pars.  Notes  and  Bills  201  ;  Spring  v. 
Lovett,  11  Pick.  416  ;  Hanson  v.  Stetson,  5  Pick.  506  ;  Good- 
win v.  McCoy,  13  Ala.  261 ;  Hoare  v.  Graham,  3  Camp.  57. 

At  one  time,  in  England,  it  seems  to  have  been  considered 
an  open  question  whether  an  unqualified  acceptance  in  writing 
might  not  be  shown  by  parol  to  have  been  qualified.  Bayley 
on  Bills,  c.  6,  §  1. 

But  I  think  the  case  of  Adams  v.  Wordley,  already  cited, 
must  be  regarded  as  settling  that  question  there,  and  I  am  not 
able  to  distinguish  such  an  acceptance  from  a  promissory  note, 
upon  which  the  law  must  be  regarded  as  well  settled  upon 
this  point,  in  addition  to  the  cases  already  cited.  Ri- 
dout  v.  Bristow,  1  Tyrw.  84;  Farnham  v.  Ingham,  5  Ver. 
114;  Woodbridge  v.  Spooner,  3  B.  &  Aid.  223,  may  be  re- 
ferred to. 

In  the  present  case,  the  bill  before  acceptance  was  drawn 
by  one  Sims,  to  the  order  of  Charles  Beardsley  &  Brothers, 
of  whom  plaintiff  was  one,  and  taken  by  them  on  account  of 
a  debt  due  from  Lunt  to  them.  The  condition  sought  to  be 
proved  was,  that  the  bill  was  not  to  be  paid  until  Lunt  showed 
a  clear  title  to  some  property  in  St.  Louis,  upon  which  Lunt 
was  to  secure  Meyer,  the  acceptor,  for  the  advance.  Meyer 
at  first  refused  to  accept,  because  the  title  was  not  shown  to 
be  clear,  but  afterwards  did  accept  upon  the  condition  stated. 
Lunt  never  showed  a  clear  title,  and  Meyer  refused  to  pay. 
The  court  below  overruled  the  evidence,  and  did  so  rightly. 

It  was  insisted,  in  this  court,  that  there  was  no  considera- 


240         NEW  JERSEY  SUPREME  COURT. 

Meyer  v.  Beardsley. 

tion  for  the  acceptance,  and  that  therefore  the  plaintiff  could 
not  recover. 

The  bill  was  not  an  accommodation  bill  l>etween  Lunt,  the 
drawer,  and  Charles  Beardsley  &  Brothers,  the  payees.  It 
was  given  to  them  to  pay  a  precedent  debt.  That  is  a  suffi- 
cient consideration  to  support  the  acceptance.  Want  or  fail- 
ure of  coasideration,  if  the  latter  be  entire,  may  be  a  defence 
between  the  promisor  and  his  immediate  promisee,  and  gene- 
rally is  but  the  acceptor  of  a  bill  of  exchange  and  the  payee- 
do  not  stand  in  the  position  of  immediate  parties  of  promiser 
and  promisee.  The  payee  stands  in  the  position  of  a  stranger 
to  the  acceptor,  as  to  the  consideration  of  the  bill.  Robinson 
v.  Reynolds,  2  Q.  B.  196. 

It  is  of  no  consequence  that  the  payee  of  a  bill  knew  that 
there  was  no  consideration  for  the  acceptance,  as  between  the 
drawer  and  acceptor;  if  the  payee  or  subsequent  holder  gave 
a  bonafide  consideration  for  it  it  is  enough,  and  entitles  him  to 
recover.  Smith  v.  Knox,  3  Esp.  R.  46  ;  Pawdl  v.  Waters,  17 
John*.  176 ;  Bank  of  Rutland  v.  Buck,  5  Wend.  66. 

There  is  no  pretence  of  fraud  in  this  case.  The  plaintiff  is 
an  innocent  holder  for  the  precedent  debt  due  the  firm  of 
which  he  was  a  member ;  that  was  a  sufficient  title  to  enable 
him  to  recover. 

The  judgment  should  be  affirmed. 

OODEN,  J.  The  suit  was  brought  by  the  endorsee  against 
the  acceptor  of  a  bill  of  exchange.  The  bill  is  dated  St. 
Louis,  Missouri,  March  12th,  1861,  payable  at  two  days' sight, 
made  by  F.  Lunt  in  favor  of  the  order  of  Charles  Beardsley 
&  Brothers,  for  the  payment  of  twelve  hundred  and  forty 
dollars,  and  drawn  upon  C.  Meyer,  New  Brunswick,  N.  J., 
who  accepted  the  same  generally  in  writing,  on  the  26th  of 
April,  1861.  It  waw  endorsed  by  the  payees  over  to  William 
Beardslry,  jun.,  the  defendant  in  error. 

The  bill  of  exception  was  scaled,  ujx>n  the  refusal  of  the 
judge  of  the  Circuit  Court  to  admit  the  defendant  below  to 
prove,  that  an  oral  condition  was  connected  with  the  written 


FEBRUARY  TERM,  1863.  241 

Meyer  v.  Beardsley. 

acceptance,  that  it  was  not  to  be  paid  unless  he,  Meyer, 
should  receive  from  the  drawer  satisfactory  evidence  that 
his  property  in  St.  Louis  was  free  and  clear  of  encumbrances. 
The  acceptance  is  absolute  on  its  face,  made  upon  a  negoti- 
able instrument,  which,  by  the  form  of  it,  became  payable  in 
five  days  from  the  date  of  the  acceptance ;  and  the  defence  in- 
sisted on  was,  that  there  was  a  contemporaneous  verbal 
agreement  that  it  should  not  be  paid  until  the  acceptor  re- 
ceived certain  documents  from  the  drawer.  The  question 
presented  to  this  court  is,  whether  an  acceptance  of  a  nego- 
tiable instrument,  absolute  on  its  face,  can  be  shown  to  be 
conditional  by  parol?  It  was  not  pretended,  in  argument, 
that  such  proof  could  be  given  in  a  suit  brought  by  an  en- 
dorsee who  was  a  third  party ;  but  as  the  plaintiff  below  was 
one  of  the  firm  of  Beardsley  &  Brothers,  it  was  urged  that 
he  held  the  paper  both  for  acceptance  and  collection.  Can 
such,  an  acceptance  be  qualified  by  parol  in  the  hands  of  the 
payees?  The  great  weight  of  authority  is  against  the  admis- 
sibility  of  the  testimony,  because  its  admission  would  contra- 
dict the  terms  of  the  written  contract. 

The  case  of  Adams  v.  Wordley,  1  M.  &  W.  374,  was 
an  action  by  the  drawee  against  the  acceptor.  The  de- 
fence set  up  was  an  agreement,  not  in  writing,  that  the 
plaintiff  stipulated  not  to  call  upon  the  defendant  until  an 
action  against  a  third  party  was  determined.  Ttie  judges 
overruled  the  defence,  upon  the  ground  that,  by  a  parol  con- 
temporaneous agreement,  it  sought  to  alter  the  absolute 
-engagement  entered  into  by  the  bill — declaring  in  their  opin- 
ions, given  seriatim,  that  it  would  be  very  dangerous  to  allow 
a  party  to  alter,  in  such  a  manner,  the  absolute  contract  on 
the  face  of  a  bill  of  exchange,  as  it  would  be  incorporating 
with  a  written  contract,  an  incongruous  parol  condition,  which 
is  contrary  to  first  principles.  The  subject  is  very  fully  dis- 
cussed in  Parsons  on  Notes  and  Bills,  where  all  the  authorities 
cited  on  this  argument  are  referred  to,  and  very  many  others. 
The  learned  author  states  the  law  to  be,  that  the  maker  of 
an  absolute  note  cannot  show  against  the  payee,  and  a  fortiori) 


242          NEW  JERSEY  SUPREME  COURT. 

Meyer  v.  Beardsley. 

not  against  any  endorser,  an  oral  contemporaneous  agree- 
ment, which  makes  the  note  payable  only  on  a  contingency. 
To  illustrate  :  "  It  cannot  be  shown  that  an  absolute  acceptance 
was  conditioned  orally,  upon  the  drawer's  finishing  certain 
work  undertaken  for  the  drawee,  or  that  a  note  was  payable, 
only  in  case  the  sale  of  a  lot  of  laud  was  suspended."  So  also, 
that  a  mutual  understanding  of  the  parties,  at  the  time  a 
note  was  given,  that  if  the  value  of  the  goods  sold  should 
turn  out  less  than  supposed,  the  note  should  be  void,  is  no 
defence.  The  doctrine  maintained  by  the  author  referred  to, 
applies  only  to  cases  where  the  instrument  is  absolute  and 
complete  in  its  terms,  and  leaves  nothing  to  be  supplied  by 
oral  evidence  to  make  an  entire  and  intelligible  stipulation. 
A  conditional  acceptance,  made  to  depend  upon  the  happen- 
ing of  a  future  event,  is  in  fact  only  a  promise  to  accept  abso- 
lutely when  the  contingency  shall  happen,  and  it  is  a  different 
contract  from  an  acceptance  absolute  on  its  face. 
The  judgment  below  should  be  affirmed  with  costs. 

VBEDENBURQH,  J.  This  was  an  action  brought  by  Beards- 
ley,  as  payee,  against   Meyer,  as  acceptor  of  a  bill   of  ex- 
change, in  the  following  words: 
$1 240.  ST.  Louis,  March  1 2Mi,  1 86 1 . 

Two  days  sight  jwiy  to  the  order  of  Charles  Beardsley  and 
Bro's  twelve  hundred  and  forty  dollars  value  received,  and 
charge  the  same  to  the  account  of  F.  LUNT. 

The  defendant,  by  way  of  defence,  offered  to  prove  by 
parol  that  at  the  time  when  the  defendant  wrote  the  words 
"  Exeepted  April  22,  '61.  C.  Meyer"  across  the  face  of  the 
bill,  he  annexed  to  the  acceptance  a  condition  that  Lunt  was 
to  furnish  him  satisfactory  evidence  that  his,  Lunt's,  pro- 
|x?rty  in  St.  I /mi.-  was  I'm-  from  encumbrance  before  pay- 
ment, wliii-h  was  never  done.  This  offer  the  court  overruled. 
It  is  no\\  contended  that  the  word  "  Exeepted,"  written 
acro«H  the  face  of  the  bill,  is  equivocal,  and  not  an  absolute 
a<vept:in«-,..  and  liable  therefore  to  lx;  qualified  by  parol  tes- 
timony of  what  took  place  at  the  time. 


FEBRUARY  TERM,  1863.  243 


Meyer  v.  Beardsley. 


The  writing  across  the  face  of  the  bill  is  in  red  ink,  and  in 
the  ordinary  form  of  an  acceptance,  only  the  word  is  "  excepted," 
instead  of  the  ordinary  one  accepted. 

To  constitute  an  acceptance,  no  special  words  are  necessary. 
The  signature  alone  of  the  drawee  across  the  face  of  the  bill 
will  constitute  a  written  acceptance.  It  is  a  presumption  of 
law  in  this  case,  that  the  word  "  excepted  "  was  used  in  the 
sense  of  accepted,  and  constitutes  an  absolute  written  accept- 
ance, as  much  so  as  if  the  word  accepted  had  itself  been  used. 
This  being  the  legal  result  of  the  facts,  it  follows  that  no 
parol  proof  can  be  admitted  to  prove  a  conditional  accept- 
ance, as  that  would  be  contradicting  the  written  evidence. 
1  Parsons  on  Notes  201  and  note  W. 

Upon  this  question  I  fully  concur  in  opinion  with  the 
Chief  Justice. 

VAN  DYKE,  J.,  dissenting.  This  is  an  action  brought  by 
the  endorsee  of  a  foreign  bill  of  exchange  against  the  ac- 
ceptor. The  bill  appears  to  be  in  the  iisual  form,  and  the 
acceptance  is  without  condition  on  its  face.  The  signature  to 
the  bill  was  duly  proved,  but  the  defence  offered  was  wholly 
overruled  by  the  court.  Whether  this  was  right  or  not,  is  the 
question  raised  by  the  writ  of  error. 

It  appears  that,  previous  to  the  making  of  this  draft  or 
bill  of  exchange,  the  defendant  and  F.  Lunt,  the  drawer,  had 
had  some  negotiations  concerning  the  loan  of  a  sum  of  money. 
Meyer,  it  seems,  had  agreed  to  loan  money  to  Lunt,  the 
drawer,  to  be  secured  on  real  estate  in  St.  Louis,  where  the 
drawer  then  resided.  Lunt,  the  drawer,  represented  the 
property  to  be  free  and  clear  of  all  encumbrances;  but 
Meyer,  the  defendant,  caused  an  examination  to  be  made  of 
the  records  of  St.  Louis,  and  found  the  property  to  be  largely 
encumbered,  to  nearly  or  quite  its  full  value,  and  declined  to 
make  the  loan.  Lunt  then  promised  to  have  the  encum- 
brances entirely  removed  from  the  property,  and  to  send  to 
the  defendant  satisfactory  evidence  that  the  property  was 
free  from  encumbrance.  This  he  never  did ;  but  being  in- 


244          NEW  JERSEY  SUPREME  COURT. 

Meyer  v.  Beardsley. 

debted  to  the  firm  of  Charles  Beardsley  &  Brothers,  of  which 
firm  the  plaintiff  is  one,  he  drew  the  draft  in  question  in 
their  favor  on  the  defendant.  It  was  endorsed  by  the  firm 
to  the  plaintiff,  one  of  it.s  members,  and  transmitted  to  New 
Brunswick,  in  this  state,  for  presentation  and  acceptance. 
It  is  dated  on  the  12th  of  March,  is  payable  at  two  days' 
sight,  and  was  first  presented  on  the  15th,  by  the  agent  of  the 
plaintiff.  The  matter  seems  then  to  have  been  explained  to 
the  agent,  and  the  acceptance  refused  on  the  ground  that  none 
of  the  securities  for  the  contemplated  loan  had  been  furnished 
or  made  satisfactory.  This  presentation  was  several  times 
repeated  between  the  15th  of  March  and  the  22d  of  the  follow- 
ing April,  and  the  acceptance  was  as  often  refused  for  the 
same  reason.  In  the  meantime,  the  plaintiff  and  defendant 
had  an  interview  on  the  subject,  at  which  the  whole  matter, 
with  the  reasons  for  his  refusal  to  accept,  was  explained  by 
the  defendant  to  the  plaintiff.  Afterwards,  and  on  the  said 
22d,  of  April,  the  draft  was  again  presented  for  acceptance, 
and  at  first  refused ;  but  afterwards,  to  avoid  the  trouble  of 
an  almost  daily  repetition  of  the  presentment,  he  accepted  the 
draft  on  the  condition  that  he  would  pay  it  if  he  received  from 
the  drawer  the  county  clerk's  certificate  or  other  satisfactory 
evidence,  that  the  proj>erty  was  free  and  clear  of  encumbrances; 
but  no  such  certificate  or  evidence  having  IHJCII  received,  he 
afterwards,  for  that  reason,  refused  to  pay  the  draft  when  it 
was  presented  for  payment. 

All  these  facts  the  defendant  offered  to  prove  on  the  trial, 
but  was  not  permitted  to  do  so ;  and  the  question  now  arises, 
if  he  had  done  so,  as  it  must  now  be  presumed  he  could  have 
done,  could  the  jury,  under  such  evidence,  have  lawfully  ren- 
den-d  a  verdict  for  the  defendant?  If  they  could,  then  the 
court  was  wrong  in  ovt-rruling  it. 

'1  hi-  i*  Maid  lobe  a  conditional  acceptance,  and  two  ques- 
tions M-em  to  be  presented  for  consideration :  1.  Can  a 
M-ritten  nm-pianoe,  absolute  in  its  terms,  l>e  shown  to  be  con- 
ditional by  parol  ?  2.  If  this  cannot  be  done  when  that  sim- 
ple naked  question  is  alone  presented,  is  there  anything  in  this 


FEBRUARY  TERM,  1863.  245 

Meyer  v.  Beardsley. 

case,  growing  out  of  all  the  circumstances  connected  with  it, 
which  takes  it  out  of  the  operation  of  that  rule? 

That  an  acceptance  may  be  conditional,  if  the  condition  is 
put  in  writing,  there  can  be  no  doubt ;  the  cases  are  numer- 
ous to  sustain  it.  But  whether  an  acceptance  that  is  abso- 
lute upon  its  face  can  be  shown  to  be  conditional  by  parol 
testimony  is  not  so  clear.  Writers  on  the  subject  do  not 
agree.  If  the  paper  have  passed,  without  dishonor  and  in 
the  regular  course  of  business,  into  the  hands  of  a  subsequent 
and  innocent  holder  without  any  knowledge  of  such  state  of 
things,  it  would  seem  to  be  contrary  not  only  to  justice,  but 
contrary  to  all  legal  analogies,  and  dangerous  and  impolitic 
in  the  extreme,  to  permit  such  a  defence.  But  when  the 
suit  is  between  the  immediate  parties  to  the  acceptance  and 
between  the  parties  to  the  condition,  who  knew  all  about  it, 
and  all  about  the  circumstances  which  led  to  such  an  ar- 
rangement, and  agreed  to  it  at  the  time,  it  seems  to  me  that 
justice,  sound  policy,  as  well  as  legal  analysis,  require  that 
the  whole  transaction  and  arrangement  between  them  touch- 
ing the  acceptance  should  be  shown. 

It  is  said  to  be  the  contradiction  of  a  written  agreement 
by  parol  testimony.  But  this  is  not  a  contradiction  of  any- 
thing that  is  written ;  what  is  written  of  the  agreement  is 
admitted,  and  not  denied,  but  it  is  insisting  that  the  whole 
of  the  agreement  was  not  reduced  to  writing,  and  that  the 
verbal,  which  is  in  addition  to  and  in  explanation  of  the 
written  agreement,  should  be  received  in  evidence.  This  is 
a  familiar  principle.  Nor  can  I  see  any  stronger  reason  for 
rejecting  parol  testimony  in  explanation  of  the  circumstances 
under  which  a  bill  of  exchange  was  accepted,  than  in  the 
ca.se  of  the  payer .  of  a  promissory  note.  In  the  latter  case, 
he  puts  in  writing  a  positive  and  unconditional  promise  to 
pay  the  note  according  to  its  terms,  and  thereby  declares 
that  he  has  received  the  full  consideration  therefor ;  yet  he 
is  always  permitted,  between  himself  and  the  payee,  to  show, 
by  parol,  that  he  never  was  to  pay  that  money  to  him  under 
any  circumstances,  and  that  he  never  did  receive  any  con- 


246          NEW  JERSEY  SUPREME  COURT. 

Mover  v.  Keardslev. 


sideration  for  it  whatever.  This  does  seem  to  be,  in  some 
measure,  a  contradiction  by  parol  of  the  written  agreement, 
and  yet  the  law  j>ermits  it  to  be  done,  and  it  is  not  easy  to  see 
why  the  same  thing  may  not  be  done  in  case  of  a  draft,  where 
the  acceptor  becomes  the  payer,  and  is  said  to  occupy  much 
the  same  position  as  the  payer  of  a  promissory  note. 

But  if  it  be  true  that  under  ordinary  circumstances  a  con- 
dition contemporaneous  with  the  written  acceptance  cannot 
be  shown  bv  parol,  do  not  the  whole  of  the  circumstances,  as 
we  must  snpjx>se  them  to  exist  in  this  case,  wholly  preclude 
the  idea  that  this  holder  can  now  recover  of  this  defendant 
the  amount  due  on  this  draft,  and  do  they  not  take  the  case 
entirely  out  of  the  stringent  rule  contended  for?  I  think 
they  do.  It  will  be  observed  that  the  case  is  singularly  free 
from  any  equities  on  the  part  of  the  plaintiff  for  the  court  to 
sustain.  The  plaintiff,  or  his  firm  rather,  paid  no  consider- 
ation for  the  draft.  They  took  it  on  account  of  an  old  or 
previous  debt.  Whatever  that  previous  debt  may  have  cost 
tin-in,  the  draft  cost  them  nothing  in  addition  thereto.  The 
defendant  had  nothing  in  his  hands  belonging  to  the  drawer, 
and  never  had  had.  He  owed  him  nothing,  and  has  never 
liad  any  consideration  for  this  acceptance,  and  no  probability 
that  he  ever  will.  The  draft  was  drawn  upon  him  without 
any  authority  so  to  do,  and  he  promptly  refused  to  accept  it 
or  to  recogni7A!  it.  Of  all  this  the  plaintiff  was  fully  aware, 
having  had  the  matter  and  circumstances  and  cause  of  re- 
fusal to  accept  explained  to  him  by  the  defendant.  But  after 
a  j)ei>istcnce  of  over  a  month  on  the  part  of  the  plaintiff 
and  his  agent,  of  an  almost  daily  presentment  of  the  draft, 
long  after  it  was  dishonored,  the  defendant  finally,  to  avoid 
any  further  trouble  of  presentment,  agreed  to  am-pt  it  on 
the  understanding  and  agreement  between  them  that  lie 
would  pay  it  if  the  drawer  complied  with  his  promise  to  fur- 
ni.-li  tin-  wctiriticH,  certificates,  <fco.,  otherwise  not.  Such 
we  must  understand  to  IK-  the  purjM>rt  of  what  is  termed  the 
condition,  to  which  lx»th  were  parties;  and  now  to  i>erniit 
tin:  holder  to  recover  all  this  money,  when  nothing  has  !••  --u 


FEBRUARY  TERM,  1863.  247 

State  v.  Water  Commissioners  of  Jersey  City. 

done  by  either  him  or  the  drawer  to  forward  the  papers,  or  to 
put  the  defendant  in  any  different  condition  than  he  was  when 
he  wrote  his  acceptance  on  the  doubly  dishonored  paper,  would 
seem  to  be  extraordinary  in  the  extreme ;  and  that  he  should 
thus  suffer,  because  he  was  not  permitted  to  give  the  truth  in 
evidence,  when  he  can  prove  it  by  his  adversary,  is  stranger 
still.  I  think,  therefore,  that  the  evidence  offered  by  the 
defendant  should  have  been  received,  and  if  believed  by  the 
jury,  should  have  operated  as  a  complete  defence. 

Judgment  of  Circuit  Court  affirmed. 

CITED  in  Chaddock  v.  Vanness,  6  Vroom  520 ;   Wright  v.  Remington,  12 
Vroom  55. 


THE  STATE,   MICHAEL  MALONE,  PKOSECUTOK,  v.  THE 
WATER  COMMISSIONERS  OF  JERSEY  CITY. 

1.  If  it  appear  by  the  return  to  the  writ  of  certiorari,  that  the  same  sub- 
ject matter  has  been  heard  and  adjudged  by  the  court  on  a  former 
certiorari,  to  which  the  present  prosecutor  was  a  party,  and  that  judg- 
ment thereon  was  rendered  against  him,  the  writ  will  be  dismissed. 

2.  A  party  wishing  a  review  of  an  assessment  for  a  municipal  improve- 
ment must  exercise  reasonable  diligence ;   and  if  it  appear  that  the 
work  has  been  done,  and  the  assessment  for  it  satisfied  more  than 
three  years  before  the  certiorari  was  allowed,  the  court  will  dismiss 
the  writ. 

3.  The  allowance  of  a  common  law  writ  is  a  matter  of  discretion ;  and 
whenever,  in  the  progress  of  a  cause,  the  court  discovers  facts  which, 
had  they  been  disclosed  on  the  application  for  the  writ,  would  have 
induced  a  refusal  of  the  allocatur,  the  court  may,  of  its  own  motion, 
dismiss  the  writ. 

On   certiorari.     In    matter   of    assessment    for    improve- 
ments, &c. 

It  was  moved  that  the  writ  be  dismissed  on  two  points : 
1.  Becaase  the  same  proceedings  had,  by  a,  former  writ  of 
certiorari,  to  which  the  present  prosecutor  was  a  party,  been 
brought  up  before  the  court  for  review,  and  judgment  thereon 
had  been  rendered. 


248          NEW  JERSEY  SUPREME  COURT. 

State  v.  Water  Commissioners  of  Jersey  City. 

2.  That  the  prosecutor  had  lost  his  remedy  by  unavoidable 
delay. 

The  motion  was  argued  by  C.  H.  Wlnfidd,  for  the  prose- 
cutor, and  R.  D.  McClelland,  for  the  defendants. 

The  opinion  of  the  court  was  delivered  by 

HAINES,  J.  Motion  is  made  by  the  counsel  of  the  defend- 
ants in  certiorari  to  dismiss  .the  writ  on  several  grounds,  one 
of  which  is,  that  the  whole  subject  matter  of  this  suit  has 
already  been  considered  and  adjudged.  The  return  to  the 
writ  sots  forth,  that  on  the  7th  day  of  July,  1859,  a  writ  of 
certiorari,  issuing  out  of  this  court  at  the  relation  of  Michael 
Malone,  the  present  prosecutor,  and  others,  was  directed  to 
these  defendants,  requiring  them  to  send  up  all  the  pro- 
ceedings of  the  defendants  touching  the  construction  of  a 
certain  sewer  in  Jersey  City,  with  certain  laterals  and  ad- 
ditions thereto ;  that  in  pursuance  of  the  command  of  the 
eaid  writ,  they  did  certify  and  send  to  this  court  the  reso- 
lution of  the  mayor  and  common  council  of  Jersey  City,  di- 
recting these  defendants  to  construct  the  said  sewers,  and  all 
the  proceedings  touching  the  same,  as  they  then  remained 
before  them,  and  that  they  are  the  same  proceedings  and 
record  which,  by  the  writ  in  this  case,  they  are  required 
now  to  certify  and  send  up.  And  they  further  certify,  that 
such  proceedings  were  thereupon  had  in  this  court  that  the 
proceedings  of  the  defendants  in  relation  to  the  said  sewers 
were  in  all  things  affirmed.  And  it  is  further  certified,  that 
the  said  Michael  Malone,  with  other  prosecutors,  removed 
the  record  of  this  court  to  the  Court  of  Errors  and  Apj>eals, 
where  the  judgment  of  this  court  uj>on  the  said  proceedings 
of  the  defendant/*  was  in  all  things  affirmed,  and  the  records 
remitted  to  this  court,  where  the  same  now  remain;  and 
that,  in  consequence  thereof,  the  said  proceedings  and  record 
do  not  remain  In-fore  them,  and  that  they  are  not  able  to  send 
up  the  same  to  this  court  at  this  time. 

On  the  return  so  made  there  was  no  allegation  of  dimiini- 


FEBRUARY  TERM,  1863.  249 

State  v.  Water  Commissioners  of  Jersey  City. 

tion  of  the  record,  nor  rule  to  correct  or  perfect  it,  and  we  are 
left  to  presume  that  the  return  is  in  accordance  with  the  facts 
of  the  case.  If  that  be  so,  then  it  appears  that  on  the  relation 
of  Michael  Malone,  among  others,  the  subject  matter  of  the 
present  suit  has  already  been  heard  and  adjudged  by  this 
court,  and  judgment  rendered  thereon  against  the  prosecutor. 
He  has  once  been  heard,  and  has  no  right  to  be  heard  again,, 
nor  to  vex  the  defendants  a  second  time  for  the  same  cause, 
and  this  is  a  sufficient  reason  for  dismissing  the  writ. 

Another  objection  is,  that  the  writ  of  certiorari  in  this  case 
was  improvidently  granted.  If  the  return  to  the  writ  now 
made  is  not  in  accordance  with  the  facts,  and  the  prosecutor 
has  not  already  been  heard,  and  the  subject  matter  in  all 
things  adjudged,  then  it  appears,  by  the  depositions  read  with- 
out objection,  that  the  sewer,  and  its  laterals  and  additions 
thereto,  had  been  completed,  and  were  in  actual  operation  in 
the  month  of  May,  1859;  and  that  the  assessment  of  the  ex- 
penses of  the  same  was  at  the  time  approved  and  confirmed. 
The  prosecutor  sued  out  the  present  writ  to  review  the  pro- 
ceedings, and  procured  its  allowance  at  the  term  of  June,  1862, 
more  than  three  years  after  the  work  was  done  and  assessment 
ratified.  A  party  who  desires  a  review  of  such  proceedings 
should  exercise  reasonable  diligence  in  having  it  done.  There 
is  neither  reason  nor  justice  in  his  standing  by,  while  a  large 
expenditure  is  being  made  for  a  supposed  public  benefit,  and 
after  it  is  completed,  to  enjoy  the  benefit,  and  then,  for  some 
supposed  or  real  error  or  informality,  to  have  the  proceedings 
and  the  assessment  against  him  set  aside,  and  so  save  himself 
from  his  share  of  the  expense.  It  is  to  be  presumed  that  when 
the  writ  was  allowed  the  court  was  not  informed  of  these  cir- 
cumstances, or  else  that,  in  the  exercise  of  its  discretion,  the 
writ  would  have  been  refused.  Such  motions  are  usually  made 
ex  parte,  and  must  be  at  the  risk  of  the  party  making  them.  It 
has  frequently  been  held  that  the  allowance  of  a  common  law 
writ  is  a  matter  of  discretion,  and  that  whenever,  in  the  pro- 
gress of  the  cause,  the  court  discover  facts  which,  had  they 
been  disclosed  on  the  application  for  the  writ  would  have  in- 
duced a  refusal  of  the  allocatur,  the  court  may,  ex  mero  motu, 


250          NEW  JERSEY  SUPREME  COURT. 


Reford  v.  Cramer. 


dismiss  the  writ.  Huines  v.  Campion,  3  Harr.  51 ;  State  v. 
Kingsland,  3  &/&.  85 ;  fiferfe  v.  £wrrd,  J6.  370 ;  State  v.  Wbod- 
tcarrf,  4  Hal*.  21. 

In  the  case  of  The  Stole  against  Ten  Eyck,  3  JTarr.  373,  the 
court  dismissal  the  writ,  because  the  party  prosecuting  it  had 
suffered  three  terms  of  the  court  to  pass  after  the  return  of  a 
public  road,  before  lie  applied  for  its  allowance.  The  three  years 
which  in  this  case  had  elapsed,  between  the  completing  of  the 
work  with  the  assessment,  and  the  application  for  the  writ,  is 
such  a  period  as,  if  known  to  the  court,  would  have  induced 
a  denial  of  the  allocator,  and  is  a  good  cause  for  dismissing. 
Let  the  writ  be  dismissed  with  costs. 

CITED  in  State  v.  Council  of  Newark,  infra  306 ;  State  v.  SlauveU,  5  Vroom 
263;  State  v.  Gardner,  5  Vroom  329;  State  v.  Jersey  City,  1  Vroom  194; 
State,  Wilkinson,  pros.,  v.  Trenton,  7  Vroom  506 ;  State  v.  Essex  Public  Road 
Board,  8  Vroom  337 ;  State,  Grant,  pros.,  v.  Clark,  9  Vroom  103. 


THE    STATE,    MICHAEL    MALONE,    PROSECUTOR,    v.    THE 
MAYOR  AND  COMMON  COUNCIL  OF  JERSEY  CITY. 

1 1  A  i  N  i .-,  J.  This  cause  being  in  all  things  like  that  of  The 
Stale  against  The  Water  Commissioners  of  Jersey  City,  deter- 
mined at  this  term,  for  the  like  reasons,  must  receive  the  like 
judgment,  and  the  writ  be  dismissed  with  costs. 


JAMES   A.   REFORD   v.  GEORGE  CRAMER,   EDWARD  PIER- 
SON,  AND  GEORGE  S.  CORWIN. 

1.  That  part  of  the  sixi  h  section  of  the  act  in  regard  to  insolvent  debtors 
UViz.  Dig.  378,)*  which  requires  the  debtor's  conduct  to  be  fair,  up- 
right, and  just,  must  be  restricted  to  his  conduct  in  making  hit*  ac- 
count and  inventory,  and    in  delivering  up  to  his  creditors  all   his 
eaUU.-,  and  does  not  apply  to  the  conduct  of  the  debtor  in  contracting 
hu  debt. 

2.  If  the  debtor  has  made  a  conveyance  of  his  real  property  to  his  wife, 
although  Ix-fore  the  debt*  were  contracted,  it  is  a  question  for  the  jury 
whether  mjrh  conveyance  was  made  with   intention  to  defraud  his 


.  499,  {  11. 


FEBRUARY  TERM,  1863.  251 


Keford  v.  Cramer. 


creditors.  Such  conveyance  is  not  per  se  fraudulent  and  void  ;  yet,  if 
not  made  bona  fide  and  for  the  benefit  of  the  wife,  but  with  a  fraudu- 
lent intent,  it  comes  within  the  provision  of  the  tenth  section  of  the 
insolvent  act,  and  is  a  good  bar  to  the  defendant's  discharge. 


Certiorari  to  the  Common  Pleas  of  Essex.  In  matter 
of  insolvency. 

This  case  was  argued  before  Justices  HAINES  and  ELMER. 
For  the  plaintiff  in  certiorari,  W,  K.  McDonald. 
For  the  defendant,  C.  L.  C.  Gi/ord. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  The  plaintiff  in  this  certiorari  applied  to  the 
Court  of  Common  Pleas  of  the  county  of  Essex  for  the 
benefit  of  the  insolvent  laws.  At  the  hearing  of  the  case, 
July  1st,  1861,  the  court  would  have  discharged  him,  but 
for  the  filing  of  an  undertaking  by  the  defendant,  pursuant 
to  the  8th  section  of  the  act.  Nix.  Dig.  378.*  The  plaintiff 
having  declared  as  directed  by  the  9th  section,  the  defendant 
pleaded  thereto;  issue  was  joined,  and  the  case  brought  to 
trial  before  a  jury. 

Among  other  things  proved  on  the  trial,  it  appeared  that, 
on  May  4th,  1858,  a  deed  was  made  to  the  plaintiff's  wife  for 
a  house  and  lot,  situated  in  Bloomfield,  which  it  was  alleged, 
on  behalf  of  the  defendant,  was  designed  fraudulently  to 
cover  up  the  property,  and  keep  it  free  from  the  claims  of 
plaintiff's  creditors. 

It  further  appeared  that,  in  April,  1858,  the  plaintiff  rented 
a  paper  mill  in  Morris  county,  and  shortly  afterwards  he 
began  to  deal  with  Cramer  and  Piersou,  who  were  partners 
and  merchants  in  Morristown,  and  paid  his  indebtedness  to 
them  in  full  up  to  October,  1858.  They  afterwards  obtained 
a  judgment  against  him  in  the  Essex  Circuit  Court  for  a  debt 
contracted  after  the  last  mentioned  day,  and  have  filed  a  bill 
in  equity  to  set  aside  the  conveyance  to  plaintiff's  wife  as 

*Rev.,  p.  500,  \  13. 


252          NEW  JERSEY  SUPREME  COURT. 

Reford  v.  Cramer. 

fraudulent.  Corwin,  the  other  defendant,  obtained  a  judg- 
ment on  a  promissory  note,  endorsee!  by  him  for  plaintiff's 
accommodation,  May  4th,  1859,  which  note  was  given  for  the 
rent  of  the  mill  from  October  1st,  1858,  said  defendant  being 
at  the  time  plaintiff's  partner  in  the  manufacture  of  |>aper. 
The  said  defendant  also  became  the  assignee  of  another  judg- 
ment against  plaintiff,  obtained  for  a  debt  contracted  in  1859, 
upon  which  said  defendant  was  security. 

There  was  evidence  that  the  plaintiff,  in  May,  1858,  and 
subsequently,  represented  to  his  creditors  that  he  had  prop- 
erty in  Bloomfield,  for  which  he  had  been  offered  three 
thousand  dollars;  that  it  was  worth  three  to  four  thousand 
dollars,  and  was  not  encumbered.  The  plaintiff  denied  that 
he  had  ever  made  any  such  representations. 

The  court  charged  the  jury,  among  other  things,  as  follows  : 
"  If  you  believe,  from  the  testimony,  that  Reford,  after 
making  conveyance  of  his  property,  represented  himself  as 
still  the  owner  of  it,  for  the  purpose  of  obtaining  credit,  and 
did  obtain  credit  on  the  faith  of  such  representations  know- 
ing them  to  be  false,  then  there  is  evidence  going  to  show 
that  his  conduct  has  not  been  fair,  upright,  and  just ;  and  if 
you  should  be  satisfied  of  this,  your  verdict  should  be  in  favor 
of  the  creditors,  and  no  further  examination  of  the  case  would 
be  necessary." 

The  jury  returned  a  verdict  for  the  creditors,  and  judg- 
ment was  rendered  that  the  debtor  be  continued  in  custody 
until  thence  delivered  by  due  course  of  law,  as  provided  by 
the  statute. 

A  state  of  the  case  having  been  agreed  upon  and  returned, 
in  answer  to  the  ctrtiornri,  disclosing  the  above  facts,  it  is 
now  insisted  that  the  charge  of  the  court  to  the  jury  was 
erroneous. 

The  design  of  the  insolvent  act,  as  set  forth  in  the  first 
section,  is  that  a  person  in  confinement  for  debt,  who  is  will- 
ing to  deliver  up  to  his  creditor  or  creditors  all  his  estate, 
both  mil  and  jKjrsonul,  toward  (he  payment  of  his  creditor 
or  creditors,  hliall  obtain  his  discharge  in  the  manner  therein 


FEBRUARY  TERM,  1863.  253 

Reford  v.  Cramer. 

set  forth.  As  one  of  the  means  of  ascertaining  his  willing- 
ness to  do  so,  the  debtor  is  to  be  examined  in  open  court  and 
upon  interrogatories,  touching  and  concerning  the  disposition 
of  his  estate,  the  truth  and  fairness  of  his  accounts  and  in- 
ventory, and  also  in  regard  to  his  confinement,  to  ascertain 
whether  it  was  compulsory  or  voluntary,  or  whether  he  had 
been  without  the  prison  limits.  If  after  the  hearing,  the 
court  and  creditors  shall  be  satisfied  that  the  conduct  of  the 
debtor  has  been  fair,  upright,  and  just,  he  shall  make  an  as- 
signment of  his  property,  and  forthwith  be  discharged.  But 
if  the  creditors,  or  any  of  them,  are  not  satisfied  with  the 
truth  and  honesty  of  the  declaration  and  confession  of  the 
debtor,  nor  with  the  truth  and  fairness  of  the  accounts  and 
inventory  exhibited,  and  such  creditor  shall  undertake  to  the 
court  to  prove,  by  the  first  day  of  the  term,  that  such  debtor 
has  concealed  and  secreted  some  part  of  his  estate,  and  has 
not  fairly,  fully,  and  honestly  delivered  up  to  the  use  and 
benefit  of  his  creditors  the  whole  of  his  estate,  the  debtor 
shall  be  remanded,  and  the  question  submitted  to  trial  by  a 
jury. 

To  effect  this  object,  the  act  prescribes  the  form  of  a  de- 
claration and  plea,  whereby  the  question  is  put  in  issue 
whether  the  plaintiff  has  well  and  truly  complied  with  the 
insolvent  act  in  all  things  on  his  part  for  the  use  and  benefit 
of  his  creditors.  From  the  several  provisions  of  the  act,  as 
before  enumerated,  I  think  it  is  manifest  that  the  general 
words  used  in  the  6th  section,  which  require  the  debtor's 
conduct  so  be  fair,  upright,  and  just,  must  be  restricted  to 
his  conduct  in  making  his  account  and  inventory,  and  in  de- 
livering up  to  liis  creditors  all  his  estate.  This  construction 
is  indicated  not  only  by  the  provisions  I  have  enumerated, 
but  also  by  the  20th  section,  which  enacts  that  every  insol- 
vent debtor,  having  given  up  all  his  estate  and  conformed  in 
all  things  to  the  directions  of  the  act,  shall  for  ever  be  dis- 
charged from  his  debts,  so  far  as  regards  the  imprisonment 
of  his  person.  And  this  view  of  the  act  was  evidently  taken 
by  this  court  in  the  cases  of  Smick  v.  Opdycke,  7  Hoist. 

VOL.  i.  Q 


254          NEW  JERSEY  SUPREME  COURT. 

Reford  v.  Cramer. 

347,  and  Wallace  v.  Coil,  4  Zab.  602.  The  10th  section  of 
the  art,  I  think,  confirms  the  same  construction.  It  was  not 
originally  a  |>art  of  the  act  for  the  relief  of  persons  imprisoned 
for  debf,  but  was  the  4th  section  of  an  act,  passed  in  1830, 
al>olishing  imprisonment  for  debt  in  certain  cases.  It  enacts, 
that  if  it  shall  ap|>ear  to  the  satisfaction  of  the  court,  or  by  the 
verdict  of  a  jury,  that  the  debtor  has  concealed  or  kept  back 
any  part  of  his  estate,  or  made  any  conveyance,  deed,  or  mort- 
gage, judgment,  sale,  transfer,  assignment,  or  other  disposition 
of  his  estate,  with  intent  to  defraud  his  creditors,  then  he  shall 
be  refused  his  discharge.  Upon  the  revision  of  the  statutes, 
in  1846,  it  was  incorporated  with  the  insolvent  debtors  act,  to 
which  it  projx'Hy  belongs;  and,  read  in  connection  with  the 
other  provisions  of  the  act,  makes  it  the  duty  of  the  court  or 
the  jury  to  inquire  whether  by  any  such  means  the  debtor  is 
seeking  to  keep  back  his  projM-rty.  But  there  is  no  indication 
here,  or  in  the  other  provisions  of  the  act,  that  the  conduct  of 
the  debtor  in  contracting  his  debt  is  to  affect  his  discharge. 

It  is  by  the  act  respecting  imprisonment  for  debt  in  cases 
of  fraud  (Nir.  Dig.  354,)*  that  the  fraudulent  conduct  of  the 
debtor  in  contracting  the  debt,  is  made  a  subject  of  inquiry. 
This  is  for  the  purpose  of  subjecting  him  to  arrest  upon  a 
cttpifis,  and  <-ontains  no  reference  to  the  subsequent  proceed- 
ings to  discharge.  It  certainly  was  not  the  design  of  this 
act,  that  a  debtor,  once  properly  arrested,  should  never  l>e 
discharged.  As  to  the  charge  in  regard  to  the  conveyance 
of  the  house,  and  lot  to  the  plaintiff's  wife,  which  is  also 
complained  of  as  erroneous,  it  is  sufficient  to  remark,  that  it 
was  a  projM-r  question  for  the  jury  whether  the  conveyance 
to  the  wife  was  made  with  the  intent  to  defraud  these  cred- 
itor*. Although  made  In-fore  the  debts  in  question  were 
contracted,  and  not  jw  sc  fraudulent  and  void,  yet  if  not 
made  bona  fulc  and  for  the  Itcnefit  of  the  wife,  but  with  a 
fraudulent  intent,  it  came  within  the  provisions  of  the  l()th 
auction  of  he  insolvent  act,  and  was  a  gocxl  bar  to  the  de- 
fendant'* discharge.  The  precise  circumstances  of  the  case 

•fa*.,  p.  <•?,  {  OM. 


FEBRUARY  TERM,  1863.  255 


Rutan  v.  Hinchman. 


are  not  so  before  us  as  to  enable  us  to  judge  how  the  fact  was, 
nor  is  it  our   province  to  interfere  with  the  decision  of  the 

jury- 
Being  of  opinion  that  the  court  erred,  in  instructing  the 
jury  in  regard  to  the  defendant's  conduct,  in  contracting  the 
debts  he  owed,  the  judgment  must  be  reversed,  and  the  pro- 
ceedings remitted  to  the  Court  of  Common  Pleas,  that  there 
may  be  a  new  trial  of  the  issue  joined  between  the  parties. 

Judgment  reversed. 


HENRY  K.  RUTAN  v.  JOHN  H.  HINCHMAN  AND  HENRY  HOP- 
PER. 

An  agreement  to  sell  and  exchange  a  horse  and  money  for  money  and  a 
piece  of  land,  is  within  the  statute  of  frauds,  and  an  action  for  dam- 
ages for  refusal  to  convey  the  land  cannot  be  sustained  on  a  verbal 
agreement. 

On  certiorari  to  the  Common  Pleas  of  Passaic  county  on 
appeal. 

For  the  plaintiff  in  certiorari,  8.  Tuttle. 
For  the  defendant  in  certiorari,  J.  Hopper. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  The  state  of  demand  claims  one  hundred  dol- 
lars, in  an  action  of  trespass  on  the  case,  for  that  plaintiffs 
agreed  with  defendant  to  sell  and  exchange  with  him  a 
horse,  of  the  value  of  two  hundred  dollars,  for  one  hundred 
dollars  in  cash  and  a  certain  lot  of  land,  to  be  transferred  to 
them,  and  thereupon  delivered  to  him  the  horse,  and  re- 
ceived the  one  hundred  dollars ;  but  the  defendant  refused, 
and  neglected  to  convey  to  plaintiffs  the  said  lot  of  land.  A 
judgment  having  been  obtained  by  the  plaintiffs  for  the  hun- 
dred dollars,  this  certiorari  is  now  brought  to  reverse  the 
same. 


256          NEW  JERSEY  SUPREME  COURT. 

Rutan  v.  Hinchman. 

Upon  the  trial,  the  only  evidence  of  the  alleged  contract 
was  verbal,  it  not  being  pretended  that  there  was  any  writing. 
It  was  therefore  objected  then,  as  it  is  insisted  now,  that  the 
case  comes  within  that  clause  of  the  statute  of  frauds,  which 
forbids  an  action  being  brought  upon  any  contract  or  sale  of 
lands,  tenements,  or  hereditaments,  or  any  interest  in  or  con- 
cerning them,  unless  such  agreement,  or  some  memorandum 
thereof,  shall  be  in  writing,  and  signed  by  the  party  to  be 
charged  therewith,  «fcc. 

In  my  opinion  this  objection  is  well  taken,  and  the  case 
comes  within  the  decision  in  Smith  v.  Smith,  4  Dutcher  208. 
In  that  case  there  was  a  contract  to  transfer  a  tract  of  land, 
in  consideration  of  the  plaintiffs  erectings  building  on  it.  The 
court  held  that  no  action  could  be  brought  on  the  contract, 
because  it  was  not  in  writing.  In  that  case,  however,  the 
action  was  not  for  the  value  of  the  land,  but  for  the  expense 
of  erecting  the  buildings;  and  the  court  held  him  entitled  to 
recover,  upon  the  principle,  that  when  a  party  to  an  agree- 
ment, void  by  the  statute  of  frauds,  fails  to  execute  it,  the 
price  advanced  on  the  value  of  the  article  delivered,  in  part 
performance  of  the  contract,  may  be  recovered  back. 

This  principle  might,  perhaps,  have  entitled  the  plaintiffs 
to  have  recovered  the  value  of  the  horse,  over  and  above  the 
one  hundred  dollars  paid  for  him,  had  the  action  been  so 
brought.  But  waiving  the  objection,  that  such  an  action  in 
a  justice's  court  ought  to  have  l>een  in  debt,  because  the  con- 
tract implied  was  a  contract  for  the  payment  of  money  only, 
the  promise  to  pay  in  land  l>eing  void,  the  state  of  demand 
claims  damages  for  the  refusal  to  convey  the  land,  and  we 
must  infer  that  the  damages  actually  recovered  were  the 
value  of  the  land,  and  not  the  value  of  the  horse.  I  am,, 
therefore,  of  opinion  that  the  judgment  must  be  reversed. 

Judgment  reversed. 


FEBRUARY  TERM,  1863.  257 


Sutphin  v.  Crozer. , 


WILLIAM  B.  SUTPHIN  v.  THOMAS  CKOZEK. 

.Money  bet  on  the  result  of  a  horse  race,  and  deposited  with  a  stakeholder, 
may  be  recovered  back  before  the  contract  is  executed. 


Error  to  the  Circuit  Court  of  the  county  of  Momnouth. 

The  plaintiff  below,  Thomas  Crozer,  brought  suit  against 
William  B.  Sutphin,  the  defendant,  to  recover  a  certain  sum 
of  money,  which  had  been  deposited  with  him  as  a  bet  on 
the  result  of  a  horse  race,  on  the  ground  that  the  race  had 
never  been  run. 

The  ruling  of  the  court  on  a  question  of  evidence  was  ex- 
cepted  to  by  the  defendant,  and  a  bill  of  exceptions  was 
prayed  and  allowed.  The  matters  contained  in  the  bill  and 
all  the  facts  of  the  case  are  fully  set  forth  in  the  opinion  of 
the  court. 

.For  the  plaintiif,  J.  D.  Bedle. 
For  the  defendant,  Joel  Parker. 

The  opinion  of  the  court  was  delivered  by 

BROWN,  J.  This  action  was  brought  by  Crozer  against 
Sutphin,  to  recover  money  deposited  with  him,  as  stakeholder, 
by  Crozer,  on  a  bet  made  between  him  and  one  Voorhees. 
The  bet  vras  made  on  the  result  of  a  trot  between  horses  called 
Ben  ton  and  Vermont,  the  horse  taking  three  heats  in  five  to 
be  the  winner. 

It  appeared,  by  the  evidence  of  the  plaintiff  below,  that 
the  race  commenced  at  the  time  and  place  appointed :  each 
horse  took  one  heat,  when  it  became  dark,  and  the  judges 
refused  to  act.  Benton  was  taken  from  the  ground.  About 
an  hour  after  Crozer  saw  Sutphin,  and  demanded  his  deposit. 
The  plaintiff  having  rested,  the  defendant  offered  to  prove 
that  but  two  of  the  judges  refused  to  act,  that  the  third 
judge  remained,  and  Vermont  trotted  two  other  heats  after 


258          NEW  JERSEY  SUPREME  COURT. 

Sutphin  v.  Crozer. 

Benton  was  withdrawn,  and  was  declared  winner  by  the  judge- 
who  remained ;  that  according  to  the  custom  in  Monmotith, 
the  owner  of  Benton  had  no  right  to  withdraw  him,  and 
that  Vermont  was  the  winner  of  the  race;  that  the  money 
was  jKiid  to  Voorhees,  as  the  winner,  before  demand  made  and 
in  good  faith.  This  offer  was  overruled,  and  a  bill  of  excep- 
tions signed.  In  the  case  of  Huncke  v.  Francis,  3  Dutcher 
55,  the  court  were  divided  upon  the  question  whether  thi- 
action  would  lie  against  a  stakeholder  since  the  act  of  1846r 
making  him  indictable  for  a  misdemeanor  to  the  same  extent 
as  the  parties  who  make  the  bet.  Two  of  the  judges  held 
that  the  stakeholder  and  the  plaintiff,  being  pari  deiicto,  the 
law  should  not  aid  either,  but  leave  the  possessor  as  it  found 
him.  I  cannot  agree  to  this.  The  maxim  does  not  apply. 
The  stakeholder  and  the  gamester  may  be  made  equally  guilty 
by  the  statute,  but  they  are  not  in  the  same  fault.  The 
offences  are  collateral,  but  not  identical. 

The  opinion  delivered  by  the  then  Chief  Justice  (Green;) 
is  entirely  satisfactory  to  my  mind.  The  stakeholders  and 
the  bettors  are  not  pari  deiicto,  notwithstanding  the  act  of 
1846,  making  the  stakeholder  liable  to  indictment  for  mis- 
demeanor; the  stakeholder  remains  not  guilty  of  betting 
and  the  l>ettors  not  guilty  of  stokehold  ing.  The  bettors  com- 
mit no  crime  by  depositing  stakes,  but  merely  pay  or  deposit 
money  ujion  an  illegal  contract.  If  that  contract  has  not  been 
executed,  the  parties,  or  any  of  them,  may  rescind  it,  and 
place  themselves,  or  have  the  aid  of  the  law,  if  necessary,  in 
being  placed  *ttttu  quo  ante  contractum.  This  doctrine  is  well 
settled. 

But  the  question  here  is,  has  the  contract  l>een  executed? 
The  stakeholder  agreed  to  pay  the  money  to  the  winner. 
He  did  pay  it  to  Voorhees  as  the. winner,  but,  it  is  said,  he  was 
not  the  winner,  ami  further,  that  the  bet  was  not  decided,  the 
race  not  run.  This  position  is  well  taken,  unless  the  court 
will  usi-ertain  what  are  the  rules  which  govern  Hjiorbuncn  in 
such  itiM-s,  and  decide  according  to  such  rules.  It  is  clear 
that  this  ought  not  to  be  done.  The  whole  being  illegal  and 


FEBRUARY  TERM,  1863.  259 


Haines  v.  Dubois. 


criminal,  we  cannot  inquire  whether  Ben  ton  lost  the  money 
by  refusing,  under  the  circumstances,  to  trot,  nor  whether  Ver- 
mont won  it,  by  going  over  the  track  without  a  competitor. 

But  it  is  said  that  the  stakeholder  was  the  judge  of  the 
race  for  the  parties  who  staked  their  money  with  him,  and 
his  decision  binding  on  them.  This  may  be  so  by  the  rules 
of  sportsmen,  but  there  is  no  such  legal  rule,  and  we  cannot 
make  one  for  such  a  case.  The  evidence  overruled  does  not 
show  that  the  contract  was  executed  by  payment  to  the 
winner,  and  therefore  it  cannot  be  considered  as  executed 
at  all. 

Judgment  should  be  affirmed. 


JOSEPH  C.  HAINES  v.  DAVID  DUBOIS. 

1.  An  endorsement  is  usually  written  on  the  back  of  a  note,  but  the 
place  is  by  no  means  essential.     If  the  payee  write  his  name  on  any 
part  of  a  note,  with  the  intention  of  endorsing  it,  it  is  a  sufficient  en- 
dorsement. 

2.  A  notice  of  protest,  drawn  and  sent  to  the  endorser  as  maker,  instead 
of  as  endorser  of  the  note,  is  sufficient,  if  such  action  fully  answers  all 
the  purposes  for  which  a  notice  is  required  to  be  sent  to  an  endorser. 


On  rule  to  show  cause,  &c. 

The  issue  in  this  case  was  tried  at  the  Salem  Circuit,  and 
a  verdict  rendered  for  the  plaintiff.  The  defendant  seeks  to 
have  the  verdict  set  aside,  and  a  new  trial  granted,  because  he 
was  not  an  endorser  of  the  note  sued  on,  and  if  an  endorser 
he  had  no  sufficient  notice  of  non-payment. 

For  the  plaintiff,  8.  A.  Allen. 
For  the  defendant,  /.  T.  Nixon. 

CHIEF  JUSTICE.  The  only  question  made  upon  the  argu- 
ment was,  whether  Dubois,  who  was  sued  as  endorser  of  a 
note  was  duly  notified  of  its  dishonor. 


260         NEW  JERSEY  SUPREME  COURT. 

llaines  v.  Dubois. 

The  note  was  made  by  John  W.  Wright,  payable  to  the 
order  of  Dubois,  to  secuie  a  debt  which  he  owed  to  one 
Thomas  Newell.  He  agreed  to  give  security  for  the  delay  of 
eight  months,  the  time  the  note  had  to  run,  and  took  the 
note  so  made  away  with  him,  and  brought  it  back  with  the 
name  of  Dulwis  written  under  that  of  Wright,  the  maker. 
It  did  not  apj>ear  upon  the  trial  that  Dubois  refused  to  en- 
dorse the  'note,  but  was  willing  to  l>e  a  joint  maker;  no  evi- 
dence was  given  to  show  why  he  did  not  endorse  his  name, 
as  usual,  on  the  back,  instead  of  writing  it,  as  he  did,  on  the 
face.  Dubois  was  sworn  upon  the  trial,  and  did  not  pretend 
that  he  did  not  intend  to  endorse  the  note.  He  knew  that 
the  note  was  payable  to  his  order,  and  could  not  be  negoti- 
ated without  hi.s  endorsement,  and  with  this  knowledge  put 
his  name  ujxm  it.  It  was  a  sufficient  endorsement. 

If  the  payee  write  his  name  on  any  part  of  the  note  with 
the  intention  of  endorsing  it,  it  is  a  sufficient  endorsement. 
An  endorsement,  as  the  word  imports,  is  usually  put  upon  the 
bark  of  a  note ;  that  is  the  regular  mode,  but  the  place  where 
written  is  by  no  means  essential.  Partridge  v.  Davis,  20  Ver- 
mont 499—503. 

In  Rex  v.  Biggs,  3  P.  HW.  419—428,  it  was  held,  under 
a  statute  making  it  a  felony  to  alter  or  rase  an  endorsement 
on  a  bill  or  bank  note,  that  a  defendant  who  had  erased  with 
lemon  juice  a  receipt  for  part  payment  written  on  the  face  of 
a  bank  note,  was  pro|>erly  convicted  under  the  act  for  rasing 
an  endorsement. 

This  in  much  like  the  question  of  how  the  endorser's  name 
must  be  written.  It  has  been  held  that  a  writing  in  pencil 
is  sufficient ;  so  an  endorsement  by  initials,  and  even  by 
figures  ha.*  been  held  good.  Brown  v.  Bulchrn  Bank,  6 
Hill  4  13,  and  «ises  there  cit<>d.  Merchants  Bank  v  Spicer,  6 
Wend.  445.  The  true  rule  is  Mated  by  Nelson,  Ch.  Just., 
in  the  cane  cited  from  6  /////  1 13,  that  a  jwrson  may  become 
bound  by  any  mark  or  designation  he  thinks  proper  to  adopt, 
provided  he  uses  it  as  a  sulwtilute  lor  his  name,  and  he  in- 
tends to  bind  himself.  For  the  same  reason,  the  place  where 


FEBRUARY  TERM,  1863.  261 

Haines  v.  Dubois. 

the  name,  or  mark,  or  designation  is  put  is  not  material,  if 
the  signer  intended  it  as  an  endorsement. 

The  notary,  misled  by  the  place  in  which  he  found  Dubois' 
signature,  sent  notice  to  him  as  the  maker  of  the  note.  This 
notice  Dubois,  on  the  trial,  admitted  he  had  received,  and  did 
not  deny  that  he  was  fully  apprized  by  it  that  the  note  was 
duly  presented  for  payment  at  the  Salem  Bank,  where  it  was 
payable,  payment  demanded  of  the  maker,  and  refused.  A 
short  time  before  the  note  became  due  he  called  upon  the 
plainthT,  to  whom  Newell  transferred  it  when  made,  asked  to 
see  it,  saw  it,  and  remarked  that  it  was  correct. 

He  was  not  endorser  upon  any  other  note  at  the  time  with 
which  this  might  have  been  confounded.  In  short,  the  case 
leaves  no  room  for  doubt  that  he  was  fully  apprized  by  the 
notice  of  the  dishonor  of  the  note,  and  by  fair  implication, 
that  he  was  looked  to  for  payment.  The  notice  in  fact  an- 
swered all  the  purposes  for  which  a  notice  is  required  to  be 
sent  to  an  endorser.  This  was  held  sufficient  in  Howland  v. 
Adrain,  decided  at  June  term,  1862.  Ante  41. 

No  exception  was  taken  in  the  defendant's  brief  to  the 
place  where  the  notice  was  sent. 

The  verdict  was  right  upon  the  evidence,  and  there  should 
be  judgment  for  the  plaintiff. 

OGDEN,  J.  The  defendant  in  this  case  seeks  for  a  new 
trial  upon  two  grounds,  one  that  the  proofs  were  not  sufficient 
in  law  to  fix  him  as  the  endorser  of  a  promissory  note,  made 
payable  to  his  order;  the  other,  that  the  justice,  on  the 
trial  of  the  cause  at  the  Salem  Circuit,  refused  to  permit  the 
defendant  to  prove  that,  at  the  time  he  put  his  name  on 
the  note,  at  the  maker's  request,  it  was  agreed  between  them 
that  the  note  was  to  be  used  to  renew,  or  to  raise  money  to 
pay  off  a  note  in  the  Cumberland  Bank,  which  he  previously 
had  endorsed  for  the  maker,  and  which  would  be  due  in  a 
few  days  after  the  note  in  suit  was  made,  and  to  read  the  note 
payable  at  the  Cumberland  Bank  and  the  protest  thereof  to 
the  jury.  It  appears,  in  the  state  of  the  case  agreed  on  by 


262          NEW  JERSEY  SUPREME  COURT. 


Haiiies  v.  Dubois. 


the  counsel,  that  Dulx>is  put  his  name  upon  the  note  at  the 
request  of  Wright,  the  maker,  on  the  day  it  bears  date,  ami 
that  Wright  used  it  in  payment  of  a  debt  which  he  owed  to 
one  Thomas  Xewell,  of  the  city  of  Philadelphia.  On  the  day 
Xewell  received  the  note,  he  had  it  cashed  by  the  present 
plaintiff,  and  transferred  it  to  him  by  deliver}'  without  re- 
course. The  note  is  dated  April  12th,  1860,  payable  eight 
months  after  date,  to  the  order  of  David  Dubois,  at  the 
Salem  Bank,  for  two  hundred  and  twenty-four  dollars,  with- 
out defalcation,  for  value  received,  and  signed  John  \V. 
AV right;  and  it  has  the  name  of  David  Dubois  signed  imme- 
diately under  the  signature  of  the  maker.  A  question  was 
made  at  the  trial,  whether  Dubois  became  a  joint  maker  or 
an  endorser  by  placing  his  name  upon  the  face  of  the  note. 
It  certainly  is  not  usual  to  transfer  the  title  to  a  note  paya- 
ble to  order  by  the  payee  writing  his  name  under  that  of  the 
maker.  The  term  endorsing  conveys  a  different  idea,  and 
implies  that  the  name  is  written  on  the  back,  yet  there  are 
resj>ectable  authorities  showing  that  the  payee's  name  may 
be  written  on  the  face  of  the  instrument,  and  it  be  held  in  law 
an  endorsement.  Partridge  v.  Davis,  20  Vermont  499—503 ; 
Gibson  v.  Powell,  6  Miss.  60;  Rex  v.  Bigg,  3  P.  Wm*.  419  ; 
Yarborough  v.  Bank  of  England,  16  East  6,  12;  2  Parsons 
on  Abfc1*  and  Bills  17. 

The  justice  correctly  instructed  the  jury  that  if  the  de- 
fendant was  responsible,  it  was  through  the  legal  res|>onsi- 
bility  of  an  endorser,  and  not  of  a  joint  maker  of  the  note. 
The  case  shows  that,  on  the  day  the  note  became  jmyable,  it 
was  presented  by  a  notary  at  the  counter  of  the  Salem  Bank, 
and  jKiVinent  duly  demanded  aixl  refused  ;  and  that,  on  the 
evening  of  that  day,  notices  of  nonpayment  were  sent  by 
mail,  directed  to  Centreton  post-office,  addressed  to  Haincs, 
the  holder  of  the  note,  and  to  Wright  and  Dubois.  The 
notary  did  not  consider  Dulx>is  to  be  an  endorser,  and  ho 
testified  that  he  8ent  notice  to  Wright  and  to  Dutxna  as 
drawers.  The  forms  of  the  notices  were  not  produced  or 
proved  on  the  trial.  It  does  not  api*>ar  that  the  notice  sent 


FEBRUARY  TERM,  1863.  263 


Haines  v.  Dubois. 


to  Dubois  was  different  in  form  or  substance  from  that  sent 
to  Haines,  whom  the  notary  considered  as  an  endorser.  It 
appears,  by  the  testimony  of  the  defendant  himself,  that  he 
received  the  notice  at  the  post-office.  If  the  notice  was  de- 
fective; if  it  was  so  drawn  as  to  mislead  him;  if  it  did  not 
inform  him  that  the  note  had  been  duly  presented  at  the 
bank,  and  payment  refused  for  want  of  funds  ;  if  the  note  in 
question  was  so  defectively  described  in  the  notice  as  to 
leave  him  in  doubt  as  to  the  note  referred  to  in  it,  he  could 
have  satisfied  the  court  and  jury  upon  these  points  by  pro- 
ducing the  notice  in  evidence  before  them.  Having  received 
the  notice  on  which  the  plaintiff  depended  for  fixing  him  as 
an  endorser,  it  was  incumbent  on  him  to  produce  it,  if  he 
relied  for  his  defence  upon  any  defect  in  it.  Burgess  y.  Vree- 
land,  4  Zab.  74. 

The  justice  correctly  left  it  to  the  jury  to  say  whether  they 
believed,  from  the  testimony,  that  the  notice  which  the  notary 
mailed  for  the  defendant,  and  which  he  admitted  he  had  re- 
ceived properly  described  the  note  sued  upon,  and  revealed  to- 
him  that  it  was  unpaid. 

I  am  satisfied  that  the  justice*  properly  overruled  the  testi- 
mony offered  by  the  defendant,  of  the  oral  understanding  had 
between  him  and  Mr.  Wright,  when  the  note  was  signed  by 
him.  The  note  is  negotiable  on  its  face :  it  was  payable  eight 
months  after  date,  and  was  known  by  the  defendant,  for 
some  time  before  it  became  due,  to  have  been  held  by  the 
plaintiff  for  a  consideration.  The  testimony  was  ruled  to  be 
incompetent,  unless  the  defendant  would  undertake  to  con- 
nect the  plaintiff  with  a  knowledge  of  that  equity.  He  did 
not  allege  the  fact,  or  attempt  to  make  any  such  proof. 

The  rule  to  show  cause  should  be  discharged,  and  final 
judgment  entered. 

VAN  DYKE,  J.  This  action  is  brought  by  the  plaintiff,  as 
the  holder  of  a  promissory  note,  against  the  defendant,  as  the 
endorser  thereof. 

It  appears,  by  the  evidence,  that  a  person  of  the  name  of 


264          NEW  JERSEY  SUPREME  COURT. 

Haines  v.  Dubois. 

Wright  was  indebted  to  a  jierson  by  the  name  of  Newell,  in 
Philadelphia,  for  merchandise.  In  consequence  of  some  de- 
duction having  been  made  from  the  claim,  Wright  agreed  to 
give  Newell  a  note  for  the  balance,  with  the  defendant  as 
surety.  The  note  was  accordingly  drawn  up  payable  at  the 
Salem  Bank,  with  the  name  of  the  defendant  inserted 
therein  as  the  payee,  and  as  the  person  who  was  to  endorse 
it  to  the  plaintiff.  Wright  then  took  the  note  signed  by 
himself  to  the  defendant,  to  get  his  name  upon  it  as  endorser. 
The  defendant  put  his  name  upon  it,  but  instead  of  writing 
it  on  the  back,  as  is  usual,  he  wrote  it  upon  the  face,  and  im- 
mediately under  the  name  of  the  drawer.  This  was  held  by 
the  court  to  be  a  sufficient  signing  of  such  a  note  to  make 
him  liable  as  an  endorser,  and  as  I  suppose  properly,  and  no 
•exception  is  taken  to  it  here. 

The  defendant  offered  to  prove  that  at  the  time  when  he 
signed  the  note  it  was  understood  between  him  and  Wright 
that  it  was  to  take  up  another  note  in  the  Cumberland  Bank, 
on  which  were  l>oth  their  names.  But  as  the  defendant  made 
no  offer  or  attempt  to  prove  that  the  plaintiff  had  any  know- 
ledge of  this  understanding,  the  evidence  was  overruled,  and 
rightly  as  I  suppose,  and  no  question  is  made  about  the  cor- 
rectness of  such  writing  in  this  court. 

When  the  note  was  returned  to  Newell,  he  immediately 
sold  it  to  the  plaintiff,  as  had  I  wen  previously  arranged  be- 
tween them,  for  $200,  Newell  not  endorsing  it. 

When  the  note  became  due  it  was  duly  presented  at  the 
l>ank  by  the  notary  for  payment,  and  payment  refused.  The 
notary  then  protested  the  note,  and  the  same  evening  put  the 
notices  of  protest  in  the  jwwt-office,  directed  to  Centreton, 
one  for  the  plaintiff  who  had  endorsed  the  note,  and  also  for 
Wright  and  the  defendant.  It  ap|H.>ars,  by  the  evidence,  that 
Centreton  is  not  the  post-office  nearest  to  the  residence  of 
the  defendant,  but  that  Pittstown  is  nearer  by  a  mile  and  a 
1ml f.  But  it  also  appears  that  while  he  generally  got  his 
mail  matter*  from  Pittatown,  he  sometimes  obtained  them 
from  Centrelon,  ami  that  he  in  fact  received  the  notice  in 


FEBRUARY  TERM,  1863.  265- 


Haines  v.  Dubois. 


question  at  that  office.  This  is  believed  to  be  a  sufficient 
sending  of  the  notice,  and  the  defendant  does  not  now  com- 
plain of  it. 

It  appears,  however,  that  the  notary,  in  the  notice  which  he 
sent  to  the  defendant,  treated  and  styled  him  as  a  drawer,  and 
not  as  an  endorser  of  the  note ;  and  it  is  insisted  that  the  notice, 
for  this  reason,  was  insufficient  to  bind  him  as  an  endorser. 
We  have  not  been  favored  with  a  sight  of  this  notice,  and  do 
not  know  what  its  precise  contents  were,  although,  according 
to  the  admission  of  the  defendant,  in  his  evidence,  he  had  re- 
ceived it,  and  must  be  presumed  to  have  had  it  in  his  posses- 
sion. But  as  the  protest  was  made  by  a  regular  notary,  after 
demand  and  refusal  of  payment,  and  the  notice  made  out  by 
him,  and  with  that  notice  in  the  hands  of  the  defendant  un- 
produced  for  the  inspection  of  the  court  and  jury,  and  in  the 
absence  of  all  evidence  to  the  contrary,  it  must  be  presumed 
that  the  notice  was  sufficient  to  apprize  the  party  of  all  that 
was  necessary,  and  that  the  jury  were  authorized  in  so  finding.. 
This  would  certainly  be  so,  I  think,  if  it  had  been  sent  to  him 
as  an  endorser.  Can  it  make  any  difference  whether  he  was- 
styled  the  one  thing  or  the  other,  or  whether  he  was  styled' 
either,  if  it  only  contained  the  information  that  a  particular 
note,  so  described  as  that  he  could  readily  recognize  it,  con- 
taining his  name,  had  been  presented  for  payment,  and  pay- 
ment refused  ?  This,  we  are  informed  by  the  notary,  was  a 
notice  of  protest  of  the  note  in  question,  which  in  common,  as 
well  as  commercial  parlance,  means  a  notice  that  payment  of 
the  note  had  been  demanded,  and  had  been  refused.  This  is 
all  that  the  defendant  was  entitled  to  know ;  and  in  the  absence 
of  all  evidence  of  any  imperfection  in  the  notice  except  that  it 
styled  him  drawer,  and  in  the  absence  of  all  evidence  that 
there  was  any  other  note  in  existence  with  his  name  on  it 
which  could  fall  due,  and  with  the  notice  itself  in  his  posses- 
sion, unshown  to  the  court  and  jury,  we  are  bound,  I  think,  to 
hold  that  the  ribtice  was  sufficient. 

Judgment  for  plaintiff! 

CITED  in  Chaddock  v.  Vanness,  6  Vroom  527. 


266  NEW  JERSEY  SUPREME  COURT. 


State  v.  Richards. 


THE  STATE,  THE  PAVONIA   FERRY  CO.,  PROSECUTORS,  v. 
HENRY  L.  RICHARDS,  COLLECTOR  OF  TAXES. 

1.  An  assessment  for  taxes,  under  the  charter  of  Jersey  City,  on  ferry 
boats  and  a  quantity  of  coal,  alleged  to  belong  to  the  Pavonia  Ferry 
Company,  set  aside  on  testimony  showing  that  the  ferry  company  had 
no  interest  in  such  property. 

2.  The  question,  whether  the  ferry  company  have  power   to   delegate 
their  right  of  ferriage,  cannot  be  raised  in  this  case,  where  the  question 
is,  whether  the  prosecutors  are  or  are  not  the  owners  of  the  property 
upon  which  the  tax  has  been  assessed. 


On  certiorari.     In  matter  of  assessment  and  taxation. 
For  the  prosecutor,  A.  0.  Ztibriskie. 
For  the  defendant,  R.  D.  McClelland. 

The  opinion  of  the  court  was  delivered  by 

HAINES,  J.  The  writ  of  ccrtiorari  in  this  case  brings  up 
the  assessment  for  taxes  for  the  year  1861,  assessed  on  prop- 
erty in  Jersey  City,  alleged  (o  belong  to  the  Pavonia  Ferry 
Com|>any.  The  objection  is  to  the  items  in  which  they  are 
MKSS<><|  ii.r  two  ferry  lM»ats  and  a  quantity  of  ooal,  upon  the 
ground  that  the  same  do  not  belong  to,  and  were  never  in 
the  use  or  custody  of  the  prosecutors.  The  44th  section  of 
the  act  to  incorporate  Jersey  City,  IMWX  of  1851,  page  409, 
provides  that  the  assessors  shall  assess  all  real  estate  and 
chattels  situated  in  the  city,  both  of  residents  and  non-resi- 
dents, at  its  true,  full,  and  fair  value,  designating  the  number 
of  lots  and  partis  of  land  and  the  value  of  the  personal 
chattels  which  they  assess  to  each  person.  Hence  it  is  obvi- 
ous that  the  property  to  lx;  ansesserl  must  be  in  the  city,  and 
88868*4*1  to  its  owner,  whether  he  reside  in  the  city  or  else- 
where. If,  therefore,  the  property  in  question  did  not  at  the 
time  of  the  assessment  Ix-loug  to  the  prosecutors,  the  assess- 
ment to  them  for  that  pn>|>erty  must  !>••  set  aside.  And  this 
is  a  question  of  fact,  to  be  settled  by  the  testimony.  By  the 


FEBRUARY  TERM,  1863.  267 


State  v.  Richards. 


•depositions  taken,  it  appears  that  the  Pavonia  Ferry  Com- 
pany have  no  interest  in  property  at  or  upon  the  Long  Dock, 
except  the  right  of  ferry,  and  that  it  does  not,  either  by 
itself  or  its  officers,  run  the  ferry  nor  own  any  boat  nor  any 
coal ;  that  the  ferry  is  run  by  Nathaniel  Marsh,  receiver  of 
the  New  York  and  Erie  Railroad  Company  ;  that,  as  such 
receiver,  he  bought  the  boats  for  service  at  the  ferry,  and 
has  used  them  in  that  service,  and  that  the  coal  in  question 
was  also  his  property,  as  such  receiver,  and  used  in  propelling 
the  boats.  This  testimony  is  uncontradicted ;  and  if  true  it 
shows  that  the  personal  property  assessed  did  not  belong  to 
the  prosecutors,  and  that  they  should  not  have  been  assessed 
for  it.  It  is  suggested,  on  the  part  of  the  collector,  that  the 
ferry  company  have  no  power  to  delegate  the  right  of  fer- 
riage. That  may  be  so,  or  not,  but  the  question  cannot  be 
raised  here.  For  if  it  be  held  that  they  have  abused  their 
power  by  letting  out  their  franchise,  that  does  not  make  them 
the  owner  of  the  boats  nor  of  the  coal ;  and  it  is  of  no  conse- 
quence here  who  are  the  owners,  nor  who  ought  to  have  been 
assessed,  if  not  they. 

Some  reliance  seems  to  be  placed  on  a  letter,  written  in 
behalf  of  the  counsel  of  the  Long  Dock  Company,  in  which 
the  assessor  was  informed  that  the  taxes  for  the  improvement 
on  Long  Dock  had,  for  that  season,  better  be  assessed  to 
the  Long  Dock  Company.  But  this  does  not  apply  to  the 
case  before  us.  It  relates  to  real,  and  not  to  personal  estate. 
It  could  not  have  misled  the  assessor,  for  he  assessed  real 
estate  to  the  Pavonia  Ferry  Company,  and  they  do  not  object 
to  it,  nor  call  it  in  question.  If  it  be  the  same  as  that  men- 
tioned as  the  real  estate  of  the  Long  Dock  Company,  no 
wrong  is  done  to  Jersey  City  or  any  of  its  officers.  What 
the  prosecutors  complain  of  is  the  assessment  for  personal 
property,  which  does  not  and  never  did  belong  to  them,  and 
they  are  entitled  to  relief. 

The  assessment,  as  to  the  ferry  boats  and  coal,  must  be  set 
aside. 


268          NEW  JERSEY  SUPREME  COURT. 


State  v.  Ryerson. 


THE  STATE,  URIAH  VAN   RIPER    AND  OTHERS,  PROSECU- 
TORS, v.  JOHN  D.  RYERSOX,  ASSESSOR,  ETC. 

The  act  of  March  27th,  1862,  (Lavs  1862,  307,)  is  not  a  supplement  to  the 
act  of  March  14th,  1851,  (Lavs  1851,  270,  §  11,)  but  a  distinct  and  in- 
dependent act,  and  does  not,  in  order  to  raise  the  necessary  money  by 
taxation,  require  a  resolution  of  two-thirds  of  the  inhabitants  present 
at  the  meeting  of  the  taxable  inhabitants  of  the  district,  or  the  certifi- 
cate of  the  school  trustees  to  be  under  oath. 


On  certiorari.  In  matter  of  assessment,  to  raise  money 
under  a  special  law  to  pay  for  building  a  school  house. 

This  suit  is  brought  to  remove  a  certain  certificate,  made  by 
the  trustees  of  the  Union  School  District,  in  the  township  of 
Wayne,  Passaic  county,  directing  the  said  assessor  to  levy  and 
nflocn  the  sum  of  seven  hundred  dollars  on  the  property  and 
inhabitants  of  said  district,  to  defray  the  expense  of  building 
a  school  house. 

It  is  sought  to  set  aside  these  proceedings,  principally  on 
the  ground  that  the  question  of  taxation  for  such  purpose  was 
not  submitted  to  the  inhabitants  of  the  district,  as  required  by 
the  school  law,  and  that  the  order  or  certificate  does  not 
specify  what  jwrsons  and  property  are  to  be  assessed ;  and 
that  the  special  art  under  which  the  assessment  was  made 
does  not,  in  terms,  dispense  with  those  necessary  provisions, 
and  should  be  so  construed  as  to  be  consistent  with  the  gen- 
eral law. 

For  the  prosecutors,  D.  Rurkalow. 
For  the  defendant,  A.  0.  Zuhri&kie. 

HAI.NBS,  J.  Under  the  act  of  14th  March,  1851,  the  in- 
habitant* of  the  Union  School  District,  in  the  township  of 
Wayne,  and  county  of  Passaic,  revived  to  raise  money  to 
build  a  school  house.  The  assessment  of  the  money,  MO  re- 


FEBRUARY  TERM,  1863.  269 

State  v.  Ryerson. 

solved  to  be  raised,  was  removed  by  writ  of  certiorari  to 
this  court,  and  set  aside  for  irregularity.  But  the  trustees 
had  built  the  house  and  expended  the  money,  and  they  ap- 
plied to  the  legislature  for  relief,  and  procured  the  passage 
of  the  act  of  March  27th,  1862.  This  act  authorizes  the 
trustees,  or  any  two  of  them,  to  assess  the  cost  of  the  school 
house  on  the  persons  and  property  of  the  district,  by  making 
a  certificate  of  the  amount  thereof,  with  interest  on  the 
same  to  the  date  of  the  certificate  and  delivering  the  same 
to  the  assessor  of  the  township,  who  is  authorized  to  assess, 
and  the  collector  of  the  township  to  collect  the  amount  in 
the  same  manner  as  other  township  moneys  are  or  may  be 
assessed,  levied,  and  collected.  Under  this  act,  two  of  the 
trustees,  on  the  23d  of  April,  1862,  made  their  certificate, 
reciting  the  act  and  stating  the  amount  of  money  expended 
in  building,  and  the  interest  thereof,  and  delivered  the  same 
to  the  assessor,  who  proceeded  to  assess  the  amount  of  money, 
certified  in  the  same  manner  as  the  other  township  moneys 
are  assessed.  This  assessment  is  brought  here  by  writ  of 
certiorari  for  adjudication,  and  it  is  objected,  that  the 
trustees  are  bound  to  observe  the  requisites  of  the  act  of 
1851,  except  those  which,  by  express  terms  or  necessary 
implication,  are  repealed  by  the  act  of  1862 ;  and  that  they 
have  failed  so  to  do,  inasmuch  as  it  does  not  appear  that  the 
money  was  resolved  to  be  raised  by  two-thirds  of  the  inhab- 
itants present  at  the  meeting,  and  that  the  assessment  is  to 
be  made  on  the  persons  and  property  of  the  district,  without 
the  exception  of  such  property  as  by  the  general  tax  law  is 
exempted  from  taxation.  And  further,  that  the  certificate 
of  the  trustees  is,  by  the  act  of  1851,  required  to  be  under 
oath.  I  can  see  no  validity  in  any  of  these  objections.  The 
act  of  1862  is  not  a  supplement,  but  a  distinct,  independent 
act,  providing  for  the  relief  of  the  trustees.  The  preamble 
recites  the  fact  of  the  expenditure  of  the  money  in  building 
the  school  house,  and  the  doubt  whether,  according  to  the 
then  existing  laws,  they  had  power  to  raise  it  by  assessment. 
And  then  provision  is  made  for  the  assessment,  and  the  man- 
VOL.  I.  R 


270          NEW  JERSEY  SUPREME  COURT. 

State  v.  Ryerson. 

ner  is  prescribed.  All  that  can  be  required  of  the  trustees  is 
to  follow  the  directions  of  the  latter  act.  No  preliminary 
vote  of  two-thirds  of  the  inhabitants  present  at  the  meeting 
is  required.  The  want  of  such  vote  may  have  been  one  of 
the  objections  under  the  former  writ,  and,  if  so,  the  defect 
was  intended  to  be  cured  by  the  healing  act. 

Nor  is  the  certificate  <>f  the  trustees  required  to  be  under 
oath.  The  preliminary  proceedings  had  been  attempted,  and 
the  legislature  was  satisfied  that  they  were  sufficient  in  sub- 
stance, and  that  the  money  had  actually  been  expended  in 
building  the  school  house,  and  all  that  was  further  required 
was  the  cert i fit-ate  without  oath  of  the  exact  amount  expended, 
and  the  interest  upon  it.  This  was  made  and  delivered  to  the 
assessor,  and  is  sufficient  authority  for  him  to  assess,  and  for 
the  collector  to  collect,  the  amount.  The  mode  of  assessing 
is  required  by  the  act  to  be  in  the  same  manner  as  other  town- 
ship moneys  are  assessed.  Nothing  is  said  about  the  property 
exempted,  and  it  may  be  presumed  that  the  legislature  meant 
to  exclude  from  the  assessment  projierty  excluded  by  the  gen- 
eral law.  If  that  was  not  so  intended,  there  can  be  no  ques- 
tion of  the  power  of  the  legislature  to  tax  for  one  puqxjse 
projxjrty  which  for  another  purpose  is  exempted.  Besides, 
there  is  no  evidence,  nor  even  suggestion,  that  any  property 
of  these  prosecutors  exempted  by  the  general  law  is  included 
in  this  assessment,  or  that  the  like  property  of  others  is  ex- 
cluded from  it.  If  others  may  have  such  a  ground  of  com- 
plaint, these  prosecutors  have  none. 

The  assessment  must  be  in  all  things  affirmed. 


FEBRUARY  TERM,  1863.  271 


Ordinary  v.  Cooley. 


THE  OKDINAKY  v.  COOLEY  AND  WEST. 

1.  One  of  the  conditions  of  an  ordinary  administration  bond  is,  that  the 
administrator  will  pay  over  to  the  persons  entitled  all  the  residue  of 
the  goods  and  chattels  found  remaining  upon  the  account  of  the  ad- 
ministrator.   Held,  that  it  is  no  breach  of  this  condition  that  the 
administrator  has  or  has  not  paid  over  to  the  creditors  their  pro  rata 
share  ordered  to  be  paid  to  them  by  the  Orphans  Court,  and  that  the 
remedy  of  the  creditors  is  under  the  other  conditions  of  the  bond. 

2.  The  history  and  origin  of  the  different  conditions  of  the  administra- 
tor's bond  commented  upon. 

The  suit  is  upon  an  administration  bond,  given  by  the  de- 
fendants, as  administrators  of  the  personal  estate  of  Samuel 
Cooley,  deceased.  The  declaration  sets  out  the  usual  condi- 
tions of  the  bond,  one  of  which  is  as  follows :  "  all  the  rest 
and  residue  of  the  said  goods,  chattels,  and  credits  which 
shall  be  found  remaining  upon  the  account  of  the  adminis- 
tration, the  same  being  first  examined  and  allowed  by  the 
judges  of  the  Orphans  Court  of  the  county,  or  other  compe- 
tent authority,  shall  deliver  and  pay  unto  such  person  or 
persons,  respectively,  as  is,  are,  or  shall  by  law  be  entitled  to 
receive  the  same." 

Of  this  condition  the  plaintiff  assigned  the  following  breach  : 
"  and  all  the  rest  and  residue  of  the  goods  and  chattels  and 
credits  which  are  found  remaining  upon  the  said  administra- 
tion, the  same  having  been  allowed  by  the  Prerogative  Court 
of  the  state  of  New  Jersey  according  to  law,  he  did  not  and 
has  not  paid  the  same,  or  any  part  thereof,  unto  the  person 
or  persons,  respectively,  who  were  and  are  entitled  to  re- 
ceive the  same,  but  hath  hitherto  neglected  and  refused,  and 
still  does  neglect  and  refuse  so  to  do,  contrary  to  the  tenor 
and  effect  of  the  condition  of  the  said  writing  obligatory,  to 
wit,"  &c. 

To  this  assignment  the  defendants  pleaded,  that  as  to  that 
breach,  "the  plaintiff  ought  not  to  have  or  maintain  his 
aforesaid  action  thereof  against  them,  because  they  say, 


272          NEW  JERSEY  SUPREME  COURT. 

Ordinary  v.  Cooley. 

there  was  no  residue  of  the  goods,  chattels,  and  credits  found 
remaining  upon  the  allowance  of  the  account  of  the  said  John 
B.  Cooley,  administrator,  &c.,  of  the  said  Samuel  Cooley,  de- 
ceased, <fec.,  to  be  paid  to  any  person  or  persons;  but  on  the 
contrary,  that  upon  .such  accounting,  and  by^  the  decree  of 
said  court  thereupon,  the  said  estate  of  the  said  Samuel  Cooley, 
deceased,  was  found  and  deemed  to  be  insolvent,  and  the  said 
goods,  chattels,  and  credits  were  insufficient  to  pay,  satisfy, 
and  discharge  the  debts  of  the  said  Samuel  Cooley,  deceased, 
and  this  the  defendants  are  ready  to  verify,"  <fcc. 

The  plaintiff  replied,  precludi  non,  &c.,  "because,  he  says, 
there  was  a  large  residue  of  the  goods,  chattels,  and  credits 
found  remaining  upon  the  allowance  of  the  said  John  B. 
Cooley,  administrator,  <fcc.,  of  all  and  singular  the  goods, 
chattels,  and  credits  of  the  said  Samuel  Cooley,  deceased,  of 
his  said  administration,  &c.,  to  be  paid  to  the  person  or  per- 
sons entitled  to  receive  the  same;  that  is,  there  was  found  to 
be  remaining  in  the  hands  of  the  said  John  B.  Cooley,  ad- 
ministrator, &c.,  of  the  residue  of  the  goods,  chattels,  and 
credits  aforesaid,  the  sum  of  four  thousand  one  hundred  and 
eleven  dollars  and  eighty-five  cents;  and  by  the  decree  of 
the  said  Prerogative  Court,  the  said  John  B.  Cooley,  admin- 
istrator as  aforesaid,  was  directed  to  pay  to  each  one  of  the 
creditors  named  in  the  said  account  the  sum  of  eighty-three 
cents  and  seventy-seven  hundredth*  of  a  cent  to  each  dollar 
of  said  creditor's  respective  claim  out  of  said  residue,  which 
was  sufficient  to  make  said  payments.  And  this  the  plaintiff 
prays,"  &c. 

To  this  replication  there  was  a  demurrer  and  joinder. 

The  case  argued  by  G.  A.  Allen  and  M.  Beasley,  for  the 
demurrants,  and  .1.  O.  Iticliey,  for  the  plaintiff. 

CHIEF  JUSTICE.  UJMHI  this  demurrer  to  the  plaintiff's  re- 
plication to  the  fifth  plea  filed  by  the  defendants  in  answer 
to  the  fourth  breach  assigned  in  the  plaintiff's  declaration, 
which  is  !u-«l  uj>on  that  clause  in  the  administration  bond 


FEBRUARY  TERM,  1863.  273 

Ordinary  v.  Cooley. 

sued  upon,  which  provides  that  "  all  the  rest  and  residue  of 
the  said  goods,  chattels,  and  credits  which  shall  be  found 
remaining  upon  the  account  of  the  said  administration,  the 
same  being  first  examined  and  allowed  of  by  the  judges  of  the 
Orphans  Court  of  the  county,  or  other  competent  authority, 
shall  deliver  and  pay  unto  such  person  or  persons,  respec- 
tively, as  is,  are,  or  shall,  by  law,  be  entitled  to  receive  the 
same."  It  stands  admitted  that  the  estate  of  the  deceased 
was  insolvent,  and  so  found  to  be  by  the  Prerogative  Court, 
and  that  the  administrator  was  found,  by  the  decree  of  the 
Prerogative  Court,  to  have  in  his  hands,  for  distribution 
among  the  creditors,  the  sum  of  four  thousand  one  hundred 
and  eleven  dollars  and  eighty-five  cents,  and  was  directed  to 
pay  to  each  of  the  creditors  of  the  deceased  upon  their 
claims,  eighty-three  cents  and  seven-hundredths  of  a  cent  to 
the  dollar.  The  demurrer  raises  the  question  whether  that 
clause  of  the  condition  is  for  the  benefit  of  creditors,  or  for 
the  next  of  kin  only,  or  persons  entitled  by  will  to  the  resi- 
due. 

The  clauses  immediately  preceding  this  provide  for  well 
and  truly  administering  the  estate  according  to  law,  and 
rendering  an  account  of  such  administration  ;  then  follows 
this  clause  touching  the  disposition  of  the  residue. 

The  term  residue  means  what  remains  and  so  found  after 
the  account  of  the  administration  is  rendered. 

What  remains  after  the  payment  of  the  debts  and  adminis- 
tration expenses  is  the  residue  intended.  The  account  which 
is  to  be  rendered  is  the  full,  final  account  of  the  administration 
of  the  estate;  upon  that  account  the  administrator  is  to  pro- 
duce his  vouchers  for  payments  made  to  creditors  before  it  can 
be  allowed. 

The  clause  obviously  contemplates  persons  who  are  by  law 
entitled  after  creditors  have  been  paid.  This  is  too  plain  to 
admit  of  controversy.  If  this  be  not  so,  then  there  is  no 
clause  in  the~bond  securing  the  rights  of  the  persons  entitled 
to  the  residue  after  payment  of  debts,  for  the  clause  was 
.never  intended  to  secure  the  payment  of  both  creditors  and 


274          NEW  JERSEY  SUPREME  COURT. 

Ordinary  v.  Cooley. 

distributees,  for  their  claims  are  not  of  the  same  character; 
the  rights  of  creditors  being  paramount  to  those  of  the  dis- 
tributees, they  are  to  be  paid  first.  A  distribution  among 
creditors  and  legatees,  of  a  residue  of  an  estate  from  which 
nothing  had  been  first  taken  to  leave  the  residue,  is  a  simple 
absurdity,  as  well  as  a  palpable  contradiction  in  terms. 

To  secure  the  rights  of  creditors  there  is  no  necessity  of 
resorting  to  a  construction  so  absurd ;  they  are  fully  pro- 
tected by  the  clause  requiring  a  full  and  complete  adminis- 
tration according  to  law,  and  a  final  account  to  be  allowed  by 
the  proper  authority. 

There  must  be  judgment  for  the  defendants  upon  the  de- 
murrer. 

VREDEXBURGH,  J.  This  is  a  suit  on  an  ordinary  ad- 
ministration l>ond,  containing  the  condition  prescribed  by 
the  statute,  Nix.  Dig.  277,  §  11.*  Among  the  breaches  as- 
signed is  the  following,  viz.  that  the  administrator  has  not 
paid  to  the  persons  entitled  all  the  residue  of  the  goods, 
chattels,  and  credits  found  remaining  upon  the  account  of  the 
administrator,  the  same  being  first  allowed  by  the  Prerogative 
Court. 

To  this  breach  the  defendant  pleaded,  that  there  was  no 
residue,  but  that  the  estate  was  insolvent.  To  which  the 
plaintiff  replied,  that  there  was  §4111.85  residue,  which  the 
administrator  was  directed  by  the  court  to  pay  to  the  creditors 
of  the  deceased,  at  the  rate  of  eighty-three  cents  to  the  dollar. 
To  this  replication  the  defendant  demurred. 

The  plaint  iff  contends,  that  where  an  estate  is  decided  to 
be  insolvent  under  the  statute,  Nix.  Dig.  387,  §  7,f  and  the 
administrator  is  ordered  to  pay  over  to  the  creditors  their 
pro  rain  share,  and  the  administrator  fails  to  do  so,  that 
it  is  a  breach  of  this  condition  of  the  bond.  In  this  he  is 
plainly  under  a  misapprehension.  This  condition  of  the  l>oiid 
was  provided  for  no  such  contingency.  The  ordinary  ad- 
mini.strutioii  Inmd,  of  which  this  .is  one,  has  the  following 
conditions:  lat,  that  the  administrator  will  make  and  exhibit 


m.    iav,  in. u  ute  Huiiimisini 
•Re*.,  p.  761,  {  43.    f  Rtr.,  p.  772,  }  89. 


FEBRUARY  TERM,  1863.  275 


Ordinary  v.  Cooley. 


an  inventory;  2d,  that  such  goods,  chattels,  and  credits  he 
will  well  and  truly  administer  according  to  law;  3d,  that  he 
will  make  a  true  account  of  his  administration ;  4th,  that  all 
the  residue  of  said  goods,  chattels,  and  credits  found  remain- 
ing upon  the  account,  as  allowed  by  the  proper  court,  he  will 
deliver  and  pay  over  to  the  persons  entitled. 

A  slight  reference  to  the  history  of  legislation  upon  this 
subject,  as  well  as  the  language  of  the  bond  itself,  will  show 
that  the  two  first  conditions  were  provided  to  secure  creditors; 
the  two  last  to  secure  those  entitled  to  distribution ;  and  that 
the  persons  entitled  to  distribution  cannot  aver  that  the  two 
first  conditions  have  been  broken,  nor  the  creditors  aver  that 
the  two  last  have  been  broken.  In  very  early  times,  the 
king,  as  parens  patrice,  was  entitled  to  the  personal  property 
of  intestates.  He  took  possession  of  them,  and,  practically, 
after  paying  debts,  gave  two-thirds  to  the  widow  and  child- 
ren, and  kept  the  balance  himself.  This  payment  of  debts, 
and  giving  two-thirds  to  the  widow  and  children,  was  a 
matter  of  grace,  and  not  of  legal  right.  He  had  the  legal 
right  to  keep  the  whole,  if  he  saw  fit.  But  in  those  early 
times  the  influence  of  the  Roman  clergy  was  very  great,  and 
continually  on  the  increase.  The  represented  to  the  king 
that  the  souls  of  intestates  were  inconveniently  delayed  in 
purgatory,  for  the  want  of  masses  said  for  them,  and  that  it 
was  an  unconscientious  thing  in  him  to  deprive  the  intestate 
by  distribution  thus  of  his  own  property,  just  when  he  most 
wanted  it,  and  that  the  king  ought  to  pass  his  prerogatives 
in  this  regard  to  them,  so  that  they  could  appropriate  it  to 
that  use,  and  thus  the  true  owner  get  the  value  of  his  property. 
Partly  by  such  persuasions  and  partly  from  fear  of  the  pope, 
the  king  finally  passed  these  prerogatives  to  Roman  bishops, 
who,  by  virtue  thereof,  stood  in  the  king's  shoes,  and  so 
legally  entitled  to  the  whole  personal  estate  of  intestates ;  and 
this  is  the  origin  of  the  Ecclesiastical  courts  of  England  and 
the  Prerogative  and  Orphans  courts  in  this  state.  The 
Roman  clergy,  being  thus  under  no  legal  obligation  to  pay 
debts,  or  to  distribute  any  part  of  the  estate  to  the  next  of 


276          NEW  JERSEY  SUPREME  GKHJRT. 

Ordinary  v.  Cooley. 

kin,  felt  bound  in  conscience  strictly  to  execute  the  trust. 
The  widow  and  children  easily  acquiesced  in  this  arrange- 
ment, but  the  creditors  were  always  somewhat  reluctant ; 
and  accordingly  we  find  that  the  barons  at  Runnymede  pro- 
cured an  insertion  in  mayna  cJiarta  that  the  bishops  should 
pay  the  debts  and  distribute.  But  the  Roman  clergy  had 
influence  enough  to  avoid  its  execution,  so  that  this  pro- 
vision of  the  great  charter  fell  obsolete.  Not  only  so,  but 
afterward,  in  the  great  charter  of  Henry  the  third,  they 
had  influence  enough  to  cause  the  whole  subject  matter  to 
be  ignored.  Things  remained  in  this  condition,  the  bishops 
having  the  legal  right  to  all  the  personal  property  of  in- 
testates, and  without  either  paying  debts  or  accounting  to 
the  next  of  kin,  until  the  13th  year  of  the  reign  of  Edward 
the  1st,  when  it  was  enacted,  that  the  Ordinary  should  be 
bound  to  pay  the  debts  of  the  intestates  as  far  as  his  goods 
extended.  But  the  Ordinary  yet  gave  no  security  whatever, 
and  all  the  residuum,  after  the  payment  of  debts,  still  re- 
mained in  his  hands  to  be  disj>osed  of  for  pious  uses.  Thus 
it  continued  until  the  37th  year  of  the  reign  of  Edward  the 
third,  when  parliament,  in  consequence  of  the  flagrant  abuses 
practised,  enacted  that  "  in  case  where  a  death  of  an  intestate 
occurs,  the  Ordinary  shall  depute  of  the  next  and  most  lawful 
friends  of  the  dead  person  to  administer  his  goods,  which 
persons  deputed  shall  have  action  to  demand  and  recover,  as 
executors,  the  debts  of  said  intestate,  to  administer  and  dis- 
|Kjiise  for  the  soul  of  the  dead,  and  shall  answer  also  in  the 
king's  courts  to  others  to  whom  the  said  deceased  was  holden 
and  bound."  It  will  be  observed  that  this  statute  merely 
took  from  the  Ordinaries  the  power  to  administer,  and  com- 
I*  ll'-d  them  to  grunt  the  administration  to  the  next  and  most 
lawful  friends  of  the  intestate,  and  all  the  administrator  had 
to  do,  was  to  pay  the  debts.  He  gave  no  bond  of  security, 
and  he  retained  all  the  residuum,  after  the  payment  of  debts, 
us  his  own  property. 

There  wart  yet  no  such  thing  as  distribution  amongst  the 
next  of  kin,  or  security  given  by  the  administrator,  either  to 


FEBRUARY  TERM,  1863.  277 

Ordinary  v.  Cooley. 

pay  debts  or  to  distribute.  As  soon  as  the  debts  were  paid 
the  estate  was  administered,  and  there  was  nothing  further  to 
be  done  by  the  administrator.  All  the  rest  of  the  estate  be- 
longed to  himself  to  dispense,  in  the  language  of  the  statute, 
for  the  soul  of  the  dead. 

The  administration  by  this  statute,  it  will  be  observed,  was 
granted  to  the  next  and  most  lawful  friends  of  the  intes- 
tate. This  language  was  afterwards  altered  by  the  statute 
of  21st  Henry  the  8th,  and  the  Ordinary  compelled  to  grant 
•the  administration  to  the  widow  or  the  next  of  kin  of  the 
intestate,  and  which  is  the  same  as  our  own  statute  now  in 
force.  It  will  be  perceived  that  as  yet  no  change  is  made  in 
the  rights  of  the  administrator.  There  is  yet  no  statute  of 
distribution ;  the  administrator  takes  all  after  the  payment 
of  debts.  But  this  statute  of  21st  Henry  the  8th  introduces 
one  great  change.  It  requires,  for  the  first  time  in  the  his- 
tory of  administrations,  that  the  Ordinary  shall  take  surety 
from  the  administrator,  not  to  distribute,  but  only  to  pay 
-debts.  It  could  not  have  been,  surely,  that  the  administrator 
shall  settle  in  the  Prerogative  Court,  and  pay  the  surplus 
after  the  payment  of  debts  to  the  next  of  kin,  for  the  surplus 
yet  belonged  to  the  administrator  himself,  to  do  with  it  as 
he  pleased ;  and,  moreover,  there  was  as  yet  no  statute  of 
distribution.  But  the  only  surety  that  could  be  required  was 
that  the  administrator  would  make  and  exhibit  an  inventory, 
and  pay  the  debts,  or,  as  it  was  then  technically  called,  ad- 
minister the  estate.  So  that,  by  the  statute  of  21st  Henry 
the  8th,  the  bond  given  by  the  administrator  contained  two 
•conditions;  one  was  the  exhibiting  an  inventory,  the  other 
was  to  pay  the  debts.  These,  it  will  be  observed,  are  the  two 
first  conditions  in  the  bond  now  required  by  our  statute,  and 
which  we  have  above  specified.  But  these  two  first  conditions 
were  provided  in  the  interest  of  creditors,  and  not  in  the 
interest  of  the  next  of  kin,  because  there  were  yet  no  next  of 
kin  that  could  take  or  had  an  interest  in  the  estate.  Things 
remained  in  this  condition  until  the  22d  of  Charles  the  2d, 


L'Ts          NEW  JERSEY  SUPREME  COURT. 

Ordinary  v.  Cooley. 

over  a  hundred  veal's,  when  the  first  English  statute  of  dis- 
tributions was  passed. 

This  statute  provided  that  the  Ordinary  should  call  admin- 
istrators to  account,  and  order  a  just  and  equal  distribution 
(after  debts  and  funeral  excuses  were  paid)  among  the  wife 
and  children  and  next  of  kin,  substantially  as  our  statute  does 
now.  And  it  provided,  in  the  second  place,  that  the  Ordinary 
should  require  of  the  administrator  a  bond  with  security,  and 
with  the  same  conditions  as  our  statutes  now  provide,  viz.  1st, 
to  file  an  inventory;  2d,  to  well  and  truly  administer  the  es- 
tate, or,  in  other  words,  pay  the  debts;  3d,  account  in  the 
Prerogative  Court ;  and  4th,  pay  the  surplus  found  upon  such 
accounting,  to  the  next  of  kin. 

Hence  it  is  manifest,  that  these  two  last  conditions  in  the 
bond  were  required  to  compel  the  administrator  to  perform 
the  two  additional  duties  imposed  upon  him  by  this  last  stat- 
ute of  22d  Charles  the  2d,  viz.  1st,  to  account  in  the  Preroga- 
tive Court;  2d,  to  pay  over  the  surplus  found  upon  such  ac- 
counting to  the  next  of  kin. 

This  is  further  manifested  from  another  historical  fact. 
After  the  said  statute  of  Edward  the  3d  took  away  from  the 
Roman  bishops  the  power  to  administer  themselves,  and 
forced  them  to  grant  administration  to  the  next  of  kin,  like 
other  |>eople,  they  were  very  prompt  to  force  others  to  be  hon- 
est, as  soon  as  they  had  no  temptation  to  be  otherwise  them- 
selves, and  they  attempted  to  force  the  administrator  to  give 
security  to  distribute  to  the  next  of  kin  ;  but  they  were  re- 
strained by  the  courts  of  common  law  by  prohibitions,  upon 
the  ground  that  the  statute  of  Edward  the  3d  meant  to  give 
to  the  administrator  appointed  by  the  Ordinary  the  same 
rights  of  property  that  the  Ordinary  himself  had  before  that 
statute  was  passed,  and  that  consequently  the  administrator 
was  not  obliged  to  account  or  distribute,  and  that  his  only 
duty  was  to  jmy  the  debts,  and  that  he  might  do  with  the 
surplus  what  he  pleased  ;  and  no  IKJIH!  ever  was  or  ever  could 
be  required  of  the  administrator  to  account  or  distribute, 
until  those  additional  duties  were  expressly  imposed  UJK>U 


FEBRUARY  TERM,  1863.  279 

Ordinary  v.  Cooley. 

him  by  the  said  statute  of  22d  Charles  the  2d.  This  statute 
was  passed  in  the  year  1661,  and  was  among  the  very  first  of 
our  colonial  statutes,  and  has  to  this  day  remained  unaltered 
upon  our  statute  book. 

So  that,  by  this  short  historical  resume,  it  appears  that  ori- 
ginally the  administrator  neither  paid  debts  nor  distributed. 
After  some  hundreds  of  years,  he  was  first  made  to  pay  debts ; 
after  some  more  hundreds  of  years,  he  was  next  made  to  give 
security  to  pay  debts ;  after  over  a  hundred  years  more,  he 
was  made  to  distribute  the  surplus,  after  paying  debts,  and  to 
insert  in  his  bond  the  additional  condition,  that  he  should  dis- 
tribute. So  that  it  would  appear,  that  these  conditions  of  our 
administration  bonds  of  the  present  day,  were  the  growth  of 
many  centuries  of  English  legislation,  each  additional  condi- 
tion being  added  as  each  additional  duty  was  imposed  by 
statute  upon  the  administrator.  Thus  we  see  how  each  stone 
was  laid  in  the  edifice,  and  came  to  have  its  peculiar  form  and 
color.  The  very  antiqueness  of  the  language  of  these  condi- 
tions gives  evidence  of  their  origin,  and  their  natural  import 
is  in  accord  with  their  history. 

The  declaration  does  not  show  whether  this  suit  is  prose- 
cuted at  the  instance  of  creditors  or  of  distributees.  If  by 
distributees,  the  plea  is  a  good  defence  to  the  breach  assigned  ; 
if  by  creditors,  there  is  no  breach  at  all.  But  the  replication 
does  show  on  its  face  that  it  is  not  by  distributees;  and  credi- 
tors cannot  complain  that  the  distributees  are  not  paid.  The 
creditors  can  only  complain  of  a  breach  of  the  conditions  in 
the  bond  provided  for  their  security,  which  conditions  are — 
1st  to  file  an  inventory ;  and  2d,  to  administer  the  estate.  If 
the  administrator  does  not  pay  the  creditors  he  does  not  ad- 
minister the  estate,  and  breaks  that  condition  of  the  bond,  and 
not  the  condition  under  which  he  is  compelled  to  distribute, 
and  under  which  this  breach  is  assigned.  The  defendant  is 
entitled  to  judgment  on  the  demurrer. 

Judgment  for  defendant. 


280          NEW  JERSEY  SUPREME  COURT. 


Hemming  v.  Clerk  of  Hudson  County. 


JAMES  FLEMMING,  JUN.,  v.  THE  CLERK  OF  THE  COUNTY 
OF  HUDSON. 

Under  the  act  respecting  conveyances  (Nix.  Dig.  131,  $  9,)  and  the  act 
respecting  mortgages,  (Nix.  Dig.  550,  \  1,)  the  clerks  of  the  Courts  of 
Common  Pleas  are  entitled  to  charge  all  persons  making  searches  the 
"  fees  allowed  by  law."  The  fees  are  allowed  for  searches  as  well  as 
for  transcript's. 

The  plaintiff  applied  to  the  court  for  a  rule  to  show  cause 
•why  a  mandamus  should  not  issue  against  defendant,  as  clerk 
of  the  Court  of  Common  Pleas  of  Hudson  county,  requiring 
him  to  allow  the  applicant,  as  one  of  the  attorneys  of  the 
court,  to  make  searches  in  the  books  of  record  in  his  office 
without  the  payment  of  fees. 

The  motion  was  argued  by  the  applicant  pro  se. 

The  opinion  of  the  court  was  delivered  by 

HAINES,  J.  A  motion  is  made  on  behalf  of  James  Flem- 
tning,  one  of  the  practising  attorneys  of  this  court,  for  a  rule 
to  show  (3i use  why  a  writ  of  mandamus  shall  not  issue  to  the 
clerk  of  the  courts  and  county  of  Hudson,  commanding  him 
to  allow  to  the  applicant,  the  temporary  use  of  the  books  of 
judgments  of  the  said  court,  and  of  the  indexes  of  the  same, 
for  the  purpose  of  making  search  for  judgments  against  a 
person  named,  without  payment  of  any  fees.  A  demand  in 
writing,  of  j)ermission  to  use  the  bo.»k,  was  made  upon  the 
clerk,  and  refused  by  him,  unless  the  fees  were  paid. 

This  presents  a  question  as  to  the  duties  and  immunities  of 
the  clerk  in  relation  to  the  public  records;  a  question  of 
general  interest,  affecting  the  clerks  of  the  several  counties, 
and  of  the  state  courts  as  well. 

The  question  affects,  also,  the  rights  of  the  public,  of  persons 
for  whose  benefit  and  protection  the  records  are  made,  and 
of  those  whose  business  or  interest  it  is  to  know  their  contents. 
Before  a  rule  will  l>e  granted  to  show  cause  why  the  sum- 
mary prerogative  writ  of  mandamus  should  not  issue,  the 


FEBRUARY  TERM,  1863.  281 


Flemming  v.  Clerk  of  Hudson  County. 


court  should  be  satisfied  that  there  is  a  prima  facie  case  of  ne- 
glect or  abuse  on  the  part  of  the  clerk,  and  that  there  is  no- 
other  mode  of  adequate  redress.  Is  such  a  prima  fade  case 
made  here  ? 

Offices  are  defined  to  be  the  right  to  exercise  a  public  or 
private  employment,  and  to  take  the  fees  and  emoluments 
thereunto  belonging;  and  among  the  rights  of  things,  are 
classed  with  incorporeal  hereditaments. 

Their  existence,  says  Sir  William  Blackstone,  is  merely  in 
idea  and  abstracted  contemplation,  though  their  effects  and 
profits  may  be  frequently  objects  of  our  bodily -senses. 

The  abstractive  in  this  case  does  not  demand  our  attention ; 
it  is  the  effects  and  profits,  the  duties  and  perquisites,  with 
which  we  are  to  deal. 

The  duty  of  the  clerk,  enjoined  by  statute,  is  to  make  and 
preserve  the  appropriate  records  of  his  office ;  of  the  clerk  of 
the  county,  upon  the  final  determination  of  any  civil  cause,  to 
make  a  complete  record  of  the  declaration,  pleadings,  proceed- 
ings, and  judgments  in  such  case  in  a  separate  book  to  be  kept 
for  the  purpose,  with  a  complete  alphabetical  index  to  the 
same.  Nix.  Dig.  660,  §  77.* 

By  the  9th  section  of  the  act  respecting  conveyances,  (Nix. 
Dig.  131,  §  9,)f  he  is  required  to  record,  in  large  well  bound 
books  of  good  paper,  to  be  provided  for  the  purpose,  and  care- 
fully preserved,  all  deeds  and  conveyances  of  lands  lying 
within  his  county,  properly  certified  to  have  been  proved  or 
acknowledged,  which  shall  be  delivered  to  him  to  be  recorded^ 

He  is  bound  not  only  to  make  these  records,  but  to  pre- 
serve them,  and  at  the  expiration  of  his  term  of  office,  to 
deliver  them  to  his  successor.  To  secure  the  performance  of 
these  duties,  he  is  required  to  be  solemnly  sworn,  and  to 
enter  into  bond  with  sureties  in  the  penalty  of  five  thousand 
dollars. 

The  preservation  of  these  records  includes  not  only  the 
keeping  of~~the  books  in  safe  custody,  but  their  security 
against  alteration  or  mutilation.  To  steal,  embezzle,  alter, 

*  Eev.,  p.  409,  \  3.    f  &*>;  P>  157,  g  25. 


282          NEW  JERSEY  SUPREME  COURT. 


Flemming  v.  Clerk  of  Hudson  County. 


or  falsify  any  record,  writ,  minute,  document,  or  other  pro- 
ceeding belonging  to  any  of  the  courts  of  this  state,  or  to  the 
office  of  the  secretary  of  state,  or  to  any  office  of  any  clerk 
of  the  courts  of  this  state,  is  a  high  crime,  punishable  by  fine 
and  imprisonment. 

Thus  it  is  seen  of  how  much  importance  are  considered  the 
public  records,  in  which  so  many  rights  of  persons  and  of 
property  are  involved,  and  what  precautions  have  been  taken 
against  their  loss  or  mutilation. 

This  high  trust  is  committed  to  the  clerk,  and  he  is  held  re- 
sponsible for  ifs  fulfillment  by  the  obligation  of  his  oath,  by  the 
penalty  of  his  official  bond,  by  his  liability  to  a  civil  action  for  a 
penalty  fixed  by  the  statute,  and  for  damages  to  a  party  injured, 
and  also  to  being  removed  from  his  office.  1  Keble  597.* 

For  these  services  the  statute  has  provided  compensation 
for  the  filing  of  papers  and  making  the  records,  and  by  fees 
for  making  searches,  and  when  required,  for  certificate  and 
seal.  These  fees  are  fixed  by  statute,  and  are  intended  to  be 
fair  and  reasonable  compensation  for  the  labor  and  responsi- 
bility of  the  office.  These  perquisites  pertain  to  the  office, 
and  l>elong  to  the  clerk  as  the  products  of  the  abstract  incor- 
]x>real  hereditaments.  He  is  as  much  entitled  to  fees  for 
searching  as  for  making  the  records. 

But  it  is  insisted  that,  under  the  act  concerning  convey- 
ances, the  attorneys  of  the  court  have  the  right  to  make  the 
searches  themselves,  independently  of  the  clerk,  and  with- 
out payment  of  fees.  The  9th  section  of  the  act,  which  pro- 
vides for  making  the  records  of  deeds  in  proper  books,  has 
the  provision,  that  to  those  books  every  person  shall  have 
free  access  at  pro|x;r  seasons,  and  be  entitled  to  transcript* 
of  the  same  on  paying  the  fees  allowed  by  law ;  and  the  act 
of  15tli  April,  1846,  concerning  mortgages  (Nix.  Dig.  550),  f 
provides  that  every  person  may  have  access  to  the  books  at 
projxT  seasons,  and  may  search  the  same,  paying  the  fees 
allowed  by  law.  There  is  no  such  provision  concerning  the 
records  of  judgments;  the  act  of  March  9th,  1845,  (Nix.  Dig. 

*2Wn  o/  Wiyan  v.  Pilkinyton.     f  Rev.,  p.  705,  9  17. 


FEBRUARY  TERM,  1863.  283 

Flemming  v.  Clerk  of  Hudson  County. 

406)*  relates  to  the  docketing  of  judgments  of  the  Circuit 
Court  into  the  Supreme  Court. 

These  clauses,  beyond  question,  authorize  the  free  access, 
at  proper  seasons,  to  the  records  of  deeds  and  mortgages,  not 
only  of  the  attorneys  of  the  court  but  of  all  persons.  The 
expression  is,  "to  which  books  every  person  shall  have 
access."  No  distinction  of  persons  is  made.  But  there  is  a 
condition  annexed,  "  on  paying  the  fees  allowed  by  law." 

The  fees  allowed  are  for  searches  as  well  as  for  transcripts. 
The  true  construction  of  the  clause  is,  that  every  person  may 
have  access  to  the  records ;  but  through  the  agency  or  under  the 
supervision  of  the  clerk,  and  with  his  assistance,  and  on  the  pay- 
ment of  the  lawful  fees.  If  the  clerk  chooses  to  take  the  re- 
sponsibility of  allowing  the  attorneys  of  the  court,  or  any  other 
person,  to.  make  searches  and  abstracts,  he  may  do  so  ;  but  upon 
such  terms,  within  the  limits  of  the  fee  bill,  as  they  may  agree 
•upon. 

It  was  never  intended  to  hold  the  clerk  responsible  for  the 
preservation  of  the  books  and  files  of  the  court,  and  to  hold  him 
by  so  many  checks  and  ties,  and  yet  open  the  office  for  the  search 
of  the  books,  the  handling  of  the  papers  by  any  one  who  may 
demand  it.  Every  one,  is  a  very  comprehensive  expression. 
If  the  clerk  must  admit  one,  he  has  no  right  to  exclude  any;  and 
who,  in  such  case,  would  be  willing  to  vouch  for  the  books  and 
papers?  Who  would  be  willing  to  swear,  and  to  bind  himself 
and  sureties  in  a  penalty  to  deliver  them  to  his  successor  ? 

There  is  neither  authority  of  law,  nor  justice,  nor  propriety, 
nor  safety  to  individuals,  nor  to  the  public,  in  so  opening  the 
doors  of  the  office,  and  so  exposing  these  valuable  public 
records.  The  clerks  now  officiating  did  not  take  their  offices 
subject  to  such  a  burthen,  and  it  should  not  now  be  imposed 
upon  them.  Should  the  legislature  think  proper  to  alter  the 
law  upon  the  subject,  they  will,  as  a  matter  of  common  jus- 
tice, relieve  the  clerks  from  the  responsibilty  of  preserving  the 
files  and  records,  or  make  the  act  prospective.  They  will  not 
hold  him  to  so  great  a  responsibility,  and  deprive  him  of  so 
much  of  his  compensation. 

*Rev.,  p.  521,  \  7. 


284          NEW  JERSEY  SUPREME  COURT. 

Taylor  v.  Sip. 

The  duties  and  perquisites  should  be  reciprocal,  and  as 
far  as  may  be,  equivalent.  They  cannot  be  so,  if  the  office  is 
open  to  such  use  of  every  one,  without  payment  of  the  law- 
ful fees. 

The  rule  to  show  cause  must  be  denied. 

ELMER,  J.,  concurred. 

VAN  DYKE,  J.,  dissented. 
OVERRULED  in  Lum  v.  ifcOarty,  10  Vroom  288. 


TAYLOR  AND  THOMSON  v.  TUNIS  SIP. 

1.  The  general  rule  is,  that  the  holder  of  a  check  is  bound  to  present  it 
for  payment  in  a  reasonable  time,  and  if  not  paid,  to  give  notice 
thereof  to  the  drawer  in  a  like  reasonable  time.     What  is  reasonable 
time  will  depend  upon  circumstances. 

2.  What  considered  reasonable  time  in  the  case  of  a  check  poet  dated, 
and  deposited  for  collection  upon  the  day  of  its  date. 

3.  A  check  poet  dated  must  be  considered  as  issued  the  day  it  bears  date. 
— Per  WHELPLEY,  Ch.  Just. 


The  action  is  brought  on  a  check  on  the  Cataract  City 
Bank,  drawn  in  Paterson  by  Tunis  Sip,  to  the  order  of  the 
plaintiffs,  for  $341.95.  It  was  for  merchandise  bought  on 
the  24th  October,  1860,  and  was  given  on  that  day,  but  post 
dated  24th  of  Noveml>er  following.  The  check  not  being 
paid  by  the  bank,  plaintiffs  brought  this  suit  to  recover  the 
amount.  On  the  trial  at  the  Morris  Circuit  before  the  Chief 
Justice,  a  verdict  was  taken  for  the  plaintiffs,  subject  to  the 
opinion  of  the  court  at  bar,  on  the  following  case: 

This  action  was  brought  upon  a  check,  pro  uL  the  same, 
and  came  on  to  be  tried  before  the  Chief  Justice  at  the 
Morris  Circuit,  January  22d,  1861,  before  a  jury,  when  the 
plaintiffs  proved  the  execution  of  the  check  by  the  defendant, 


FEBRUARY  TERM,  1863.  285 

Taylor  v.  Sip. 

and  the  endorsements  thereon,  that  the  same  was  deposited 
in  the  Hackettstovvn  Bank  a  few  days  before  it  is  dated,  and 
discounted  by  the  bank  for  plaintiffs,  having  been  drawn  on 
the  24th  October,  1860,  at  Paterson,  and  delivered  to  the 
plaintiffs  there  in  payment  for  goods  sold  and  delivered,  and 
post  dated  on  the  24th  November,  1860  ;  that  on  the  evening 
of  the  24th  November,  the  Hackettstown  Bank,  by  its  cashier, 
placed  the  same  in  a  package  with  twelve  other  checks,  and 
enclosed  them  in  a  letter,  dated  the  26th  November,  and  the 
same  day  (26th  November)  placed  the  said  letter  containing 
those  checks  in  the  post-office  at  Hackettstown,  Saturday,  the 
24th,  or  Monday,  the  26th,  directed  to  the  Newark  Banking 
Company,  Newark ;  that  the  said  package  was  received  by 
the  cashier  of  said  last,  named  bank,  for  the  first  time,  in  the 
said  Newark  Banking  Company's  office  during  business 
hours  of  the  27th,  and  receipt  thereof  acknowledged  on  that 
day,  and  forwarded  to  the  Mechanics  and  Traders  Bank  in 
Jersey  City  on  the  28th,  and  that  on  the  morning  of  the  1st 
December,  the  president  of  the  Cataract  City  Bank  found 
the  said  check  in  his  bank  in  the  morning,  at  the  opening  of 
the  bank,  in  the  Mechanics  and  Traders  Bank  packages  re- 
ceived by  mail,  and  during  the  day,  about  three  o'clock, 
handed  the  same  to  a  notary  to  present  for  payment;  that 
the  same  was  presented,  by  said  notary,  to  the  president  at 
said  Cataract  City  Bank  for  payment,  payment  required, 
and  the  check  protested  for  non-payment,  and  due  notice 
thereof  given  ;  that  the  Cataract  City  Bank  kept  an  account 
with  the  Mechanics  and  Traders  Bank  of  Jersey  City,  and 
settled  twice  a  week,  on  Tuesdays  and  Fridays ;  that  the 
said  Cataract  City  Bank  paid  all  checks  presented  at  its 
counter  on  the  1st  December,  but  none  sent  from  other  banks 
by  mail ;  that  the  said  check  was  sent  from  the  Hacketts- 
town Bank  to  the  Cataract  City  Bank  through  the  ordinary 
channels  used  for  the  collection  of  such  papers ;  that  the  Cata- 
ract City  Bank  did  not  credit  the  Mechanics  and  Traders 
Bank  at  Jersey  City  with  the  said  check  in  the  ordinary 
course  of  business,  because  its  officers  then  believed  that 
VOL.  i.  s 


286          NEW  JERSEY  SUPREME  COURT. 

Taylor  v.  Sip. 

unless  their  bauk  received  aid  that  day,  it  would  be  compelled 
to  stop. 

Thursday,  the  29th  November,  was  thanksgiving  day. 

The  sale  and  delivery  of  the  goods  mentioned  in  the  bill  of 
particulars  admitted  by  defendant. 

It  was  proved  that  the  check  would  have  been  paid  if  pre- 
sented at  any  time  prior  to  the  1st  December,  on  or  after 
24th  November. 

There  was  a  morning  and  evening  mail  from  Hackettstown 
to  Newark,  closing  at  six  and  a  half  A.  M.  and  one  and  a 
half  P.  M. 

A  morning  and  evening  mail  from  Newark  to  Jersey  City, 
and  the  same  from  Jersey  City  to  Paterson. 

The  Cataract  City  Bank  did  no  business  after  the  1st 
December,  and  went  into  the  hands  of  receivers. 

The  defendant's  account  was  good  to  pay  the  check  from 
the  24th  November  to  the  1st  December,  inclusive. 

The  check  was  given  in  pursuance  of  an  arrangement 
which  existed  between  the  parties,  that  defendant  should  have 
thirty  days'  credit  on  goods  sold  by  plaintiffs  to  him,  and 
should  give  his  check  to  them,  jx>st  dated  thirty  days  as  in  the 
present  instance. 

Plaintiffs  and  defendant  believed  the  Cataract  City  Bank 
to  be  in  good  credit  until  after  the  1st  December,  and  had  no 
reason  to  believe  otherwise. 

JACXJB  VAXATTA,  AtCy  of  Plaintiff*. 
JOHX  HOPPER,  AtCy  of  Defendants. 

On  the  coming  in  of  the  jxwfca,  it  was  moved  that  judgment 
be  entered  on  the  verdict. 

For  the  plaintiffs,  J.  Vumitta. 

1.  This  is  an  action  between  the  original  parties  to  the 
check. 

The  plaintiffs  lived  and  did  business  at  Washington,  War- 
ren county. 


FEBRUARY  TERM,  1863.  287 


Taylor  v.  Sip. 

The  defendant  resided,  and  did  business  in  the  city  of 
Paterson. 

The  check  was  made  and  issued  nearly  thirty  days  before 
its  date. 

2.  Although  post  dated,  it  is  to  be  treated  as  if  issued  on 
the  day  it  bears  date.     Story  on  P.  Notes,  §  490,  and  notes.; 
Mohawk  Bank  v.  Broderick,  10  Wend.  304. 

3.  Checks  are  to  be  treated  and  regulated  as  inland  bills  of 
•exchange.     Per   KENT,   Judge,   in    Oruger  v.   Armstrong,  3 
Johns.  Cases  5;  Smith  v.  Jones,  20  Wend.  192. 

4.  To  charge  the  drawer,  the  general  rule  is,  that  the  holder, 
in  case  of  dishonor,  is  bound  to  present  the  same  for  payment 
within  a  reasonable  time.      Chitty  on  Bills  380 ;    Conroy  v. 
Warner,  3  Johns.  Cases  259. 

5.  What  is  "  a  reasonable  time,"  is  a  question  of  law,  and 
is  dependent  upon  the  circumstances  of  each  case.     3  Johns. 
Cases  259 ;    Chitty  on  Bills  280 ;    Ibid.  285,  note  I ;  Ibid. 
513,  and  note  2 ;  Story  on  Bills,  §  470,  473,  475. 

Here,  treating  the  check  as  issued  on  the  day  it  bears  date, 
and  as  then  delivered  to  the  plaintiffs  at  their  place  of  busi- 
ness, the  ordinary  means  of  collection  were  employed,  and 
hence  due  diligence  was  exercised. 

For  the  defendant,  J.  Hopper. 

CHIEF  JUSTICE.  At  the  circuit  the  plaintiffs  had  a  ver- 
dict for  the  amount  of  the  check  sued  upon,  subject  to  the 
opinion  of  the  court  upon  a  case  stated,  agreed  upon  by  the 
parties. 

The  point  presented  for  decision  is,  whether  the  check 
was  presented  for  payment  at  the  bank  upon  which  it  was 
drawn  in  due  time,  so  as  to  exonerate  the  holder  from  laches, 
and  throw  the  loss  occasioned  by  the  failure  of  the  bank 
before  presentation  upon  the  drawer.  The  plaintiffs  resided 
and  did  business  at  Hackettstown,  in  Warren  county,  and 
sold  the  goods,  for  which  the  check  was  intended  to  pay,  to 
the  defendant  at  Paterson,  he  residing  and  doing  business 


288          NEW  JERSEY  SUPREME  COURT. 

Taylor  v.  Sip. 

there,  and  the  drawer  being  cognizant  of  that  fact.  The 
chei'k  was  given  at  the  time  the  goods  were  sold,  upon  the 
24th  October,  at  Paterson,  in  pursuance  of  an  arrangement 
between  the  parties,  that  defendant  should  have  thirty  days' 
credit  on  goods  sold  by  plaintiffs  to  him,  and  should  give  his 
check  to  the  plaintiffs  post  dated  thirty  days,  as  in  the  present 
instance.  The  check  bore  date  on  the  24th  Noveniljer,  and 
came  to  the  Cataract  City  Bank  upon  the  18th  December, 
upon  which  day  the  bank  failed,  refusing  to  pay  all  checks 
received  by  mail,  although  it  paid  on  that  day  all  checks  pre- 
sented at  its  counter.  The  next  day  it  stopped  payment  on 
all  demands,  and  has  since  been  insolvent. 

Although  the  plaintiffs  received  the  check  on  the  24th 
October,  they  did  not  put  it  in  circulation,  or  in  course  of 
transmission  for  presentation  until  a  few  days  of  the  24th 
November,  when  they  had  it  discounted  at  the  Hackettstown 
Rink.  On  the  evening  of  the  24th  November,  the  cashier 
of  the  bank  enclosed  it,  with  other  checks,  in  a  letter  di- 
rected to  the  Newark  Banking  Company,  and  put  the  letter 
in  the  office  on  Saturday,  the  24th,  or  Monday,  the  26th.  It 
was  received  by  the  Newark  Bank,  in  business  hours,  on  the 
27th,  sent  by  that  bank  to  the  Mechanics  and  Traders  Bank, 
in  Jersey  City,  on  the  28th.  On  the  morning  of  the  1st 
Deceml>er,  it  was  found  in  the  Cataract  City  Bank,  in  the 
package  received  from  the  Mechanics  and  Traders  Bank. 
The  29th  November  was  thanksgiving  day,  appointed  by  the 
governor. 

This  was  the  usual  route  by  which  checks  on  Paterson, 
put  in  the  Hackettstown  Bank,  were  collected. 

A  check  is  an  instrument  nui  gmeria,  in  some  res|>ect8  re- 
sembling, and  in  others  differing  from  an  inland  bill  of  ex- 
change. 

Ordinarily  the  drawer  of  a  check  IB  the  principal  debtor, 
and  the  presumption  is  that  it  was  drawn  to  jmy  a  debt  due 
by  the  drawer  tijioii  a  Uink  or  cashier  having  the  funds  of 
the  drawer  ii|x>n  drpo-.it  subject  to  be  appropriated  to  the 
use  of  the  drawer.  The  drawing  of  a  check  is  considered  an 


FEBRUARY  TERM,  1863.  289 

Taylor  v.  Sip. 

appropriation  of  so  much  of  the  drawer's  funds  to  its  pay- 
ment. By  it,  the  drawer  is  under  obligation  to  leave  so 
much  of  his  funds  in  the  drawer's  hands,  to  await  the  pre- 
sentation of  the  check ;  and  if  he  does  so,  and  there  is  un- 
reasonable delay  in  the  presentation  of  the  check,  and  the 
<]rawer  suffers  loss  in  consequence  thereof,  as  by  the  failure 
of  the  drawee  before  presentation,  the  loss  will  fall  upon  the 
holder  of  the  check,  if  it  would  have  been  paid  if  presented 
in  due  time.  No  days  of  grace  are  allowed  upon  it.  It  is 
payable  as  soon  as  drawn,  unless  payable  at  a  future  day  by 
its  terms  or  post  dated.  It  is  not  presentable  for  acceptance, 
but  for  immediate  payment.  When  post  dated,  it  is  not 
presentable  for  payment  until  the  day  of  its  date.  When 
payable  at  a  future  day,  it  is  payable  on  that  day  or  after. 
The  drawer  is  not  discharged  for  failure  to  present  it  when 
•due,  unless  he  has  sustained  damage,  and  then  only  pro  tanto  ; 
but  he  cannot  be  called  upon  to  pay  it,  until  after  demand  of 
payment  had  been  made  upon  the  drawer,  and  payment  re- 
fused, and  notice  given  to  him  of  nonpayment,  unless  a  suffi- 
•cient  excuse  be  shown  for  not  doing  it.  This  previous  pre- 
sentment to  the  drawee,  and  demand  of  payment  and  notice 
of  nonpayment  to  the  drawer,  is  not  for  the  purpose  of  fixing 
the  drawer,  as  in  case  of  the  drawer  of  a  bill,  or  endorser  of 
a  note,  but  as  a  prerequisite  to  the  bringing  of  an  action. 
The  payee  having  accepted  the  check  as  payment,  is  thereby 
under  obligation  to  call  upon  the  drawee  and  demand  pay- 
ment, and  give  the  drawer  notice  of  dishonor  before  he  can 
sue  him. 

The  payee  of  a  check,  in  order  to  avoid  responsibility  for 
the  failure  of  the  drawee,  if  he  resides  in  the  same  place 
where  the  drawee  and  drawer  reside,  and  receives  it  there, 
should  present  it  for  payment  upon  the  next  day  after  he 
received  it  within  business  hours,  if  payable  when  he  re- 
ceived it,  unless  the  circumstances  under  which  it  was  issued 
and  the  purpose  for  which  the  drawer  drew  it,  and  knew 
it  was  to  be  used,  show  that  it  was  not  intended  to  be  so 
presented. 


290          NEW  JERSEY  SUPREME  COURT. 


Taylor  v.  Sip. 


The  general  rule  is,  that  the  holder  is  bound  to  present  it 
for  payment  in  a  reasonable  time,  and  to  give  notice  thereof 
to  the  drawer,  in  a  like  reasonable  time.  What  is  a  reason- 
able time  will  depend  upon  circumstances,  and  will  in  many 
ca*es  depend  upon  the  time,  the  mode,  and  the  place  of  re- 
ceiving the  check,  and  upon  the  relation  of  the  parties  be- 
tween whom  the  question  arises.  If  the  check  is  drawn  for 
the  purpose  of  l>eing  negotiated  at  a  distant  place,  that  cir- 
cumstance is  also  to  be  considered,  and  it  is  to  be  presented 
as  promptly  as  the  purpose  for  which  it  was  issued  will  per- 
mit, having  regard  to  the  usual  course  of  business  and  bank- 
ing, in  transmitting  such  checks  to  their  place  of  payment. 
These  rules  will  l>e  found  to  Ixj  fully  sustained  by  the  cases 
and  approved  text  writers.  Story  on  Prom.  Notes,  title 
Check ;  Parsons  on  Notes  and  Sills,  tit.  Check ;  Ed.  on  Bill* 
and  Notes  398,  397 ;  Chitty  on  BUls  546 ;  Jn  re  Brown,  2 
Story  502. 

Where  a  check  is  issued  for  the  benefit  of  the  pavee,  by 
the  drawer,  and  post  dated  to  the  time  when  the  drawer's 
debt  l>eeomes  due,  to  enable  the  payee  to  use  it  in  a  distant 
place  from  that  where  it  is  payable,  it  is  to  be  considered,  for 
the  purposes  of  presentment,  as  if  issued  on  the  day  it  bears 
date,  and  is  payable  at  sight  on  or  after  the  day  it  bears  date. 
Moliaick  Bank  v.  Broderick,  10  Wend.  304;  13  Wend.  134, 
S.  (\  in  Error. 

The  check  was  in  the  hands  of  the  Hackettstown  Bank  on 
the  day  of  its  date,  the  24th  December,  which  had  received 
it  Ixjfore  that  time,  and  discounted  5i  for  the  use  of  the  plain- 
tiffs. Story,  in  his  work  on  Note*,  §  493,  lays  down  the  rule 
as  to  presentment  of  a  check  drawn  at  a  place  distant  from 
it*  phut;  of  payment,  as  follows:  The  holder  is  bound  to  for- 
ward it  by  |>ost  to  some  |HT>OII  at  the  latter  place  on  the  next 
secular  day  after  it  is  received  ;  and  the  jxjrson  to  whom  it  is 
forwarded  will  not  IK?  bound  to  present  it  for  payment,  until 
the  day  after  it  has  reached  him  by  course  of  |>ost. 

Parnons  on  Notes  and  Bills,  §  73,  says:  Where  the  drawer, 
drawee,  and  payee  of  a  check  live  in  the  same  place,  the  payee 


FEBRUARY  TERM,  1863.  291 

Taylor  v.  Sip. 

has  still  a  day  for  his  presentment;  but  if  it  is  drawn  on  a 
distant  place,  it  has  been  held,  in  England,  that  the  payee  has 
until  the  next  secular  day  to  forward  it,  and  his  agent  has  till 
the  day  of  the  receiving  it  for  presentment  and  demand.  For 
this  he  cites  Smith  v.  Janes,  20  Wend.  1.92;  Moule  v.  Brown, 
4  Blng.  N.  C.  266 ;  Eickford  v.  Ridge,  2  Campb.  537. 

Nor  need  the  check  be  sent  direct  to  its  place  of  payment 
by  the  holder.  It  may  be  sent  by  the  usual  and  accustomed 
channel  of  transmission.  If  it  belong  to  a  bank,  or  be  left 
with  it  for  collection,  and  the  bank  does  not  exchange  di- 
rectly with  the  bank  upon  which  it  is  drawn,  it  may  be  sent 
to  a  bank  with  which  it  does  exchange,  and  so  to  its  cor- 
respondent bank,  until  it  reaches  the  bank  at  which  it  is  pay- 
able, if  the  route  be  not  unreasonably  circuitous.  Such  is  the 
well  settled  usage  among  banks,  and  it  is  sanctioned  by  law. 
Such  is  the  rule  in  regard  to  the  transmission  of  bills  of 
exchange,  and  it  seems  equally  applicable  to  checks.  Any 
other  rule  would  be  exceedingly  onerous  to  the  holders  of 
checks.  Wallace  v.  Agry  et  al.,  4  Mason  336 ;  8.  C.,  5  Ibid. 
118  ;  Smith  v.  Janes,  20  Wend.  193. 

The  check  was  dated  the  24th  November.  The  25th  was 
Saturday.  It  was  transmitted  on  the  26th  by  the  mail  of 
that  day,  which  left  at  one  and  a  half  o'clock  p.  M.,  received 
by  the  Newark  Banking  Company  on  the  27th  November, 
sent  by  it  to  the  Mechanics  and  Traders  Bank  on  the  28th, 
and  would,  in  due  course  of  mail,  be  received  on  the  29th, 
but  that  was  thanksgiving  day.  That  bank  had  until  the 
30th  to  transmit  it  to  the  Cataract  City  Bank.  It  was  re- 
ceived there  on  the  1st  December,  as  it  was  found  in  the  bank 
on  the  morning  of  that  day.  The  case  expressly  states  that 
the  check  was  sent  by  the  ordinary  channel  used  for  the  col- 
lection of  such  paper. 

As  the  check  was  to  be  considered  as  if  issued  on  the  (lay 
it  bore  date,  and  as  it  was  transmitted  by  the  usual  channel 
for  collection,  in  strict  accordance  with  the  rule  giving  a  day 
to  each  collecting  agent,  I  think  the  holder  of  the  check  was 


292          NEW  JERSEY  SUPREME  COURT. 

Taylor  v.  Sip. 

not  guilty  of  negligence,  and  that  the  drawer  of  the  check, 
the  same  having  been  duly  presented  for  payment,  and  due 
notice  of  non-payment  given  to  him,  is  liable  for  the  amount 
of  the  check,  and  that  there  should  be  judgment  on  the  ver- 
dict. 

OODKX,  J.  The  action  is  founded  on  a  check,  drawn  by  the 
defendant  in  favor  of  the  order  of  the  plaintiffs,  for  §341.95, 
in  Paterson,  on  the  24th  of  October,  1860,  given  in  payment 
of  merchandise  purchased  on  that  day,  but  post  dated  on  the 
24th  of  November  following.  It  was  payable  at  the  Cataract 
City  Bank  at  Paterson.  The  plaintiffs  resided  in  Washing- 
ton, Warren  county.  The  defendant,  a  resident  in  Paterson, 
provided  funds  in  the  Cataract  City  Bank  to  meet  the  check 
before  the  24th  of  November,  and  had  them  on  deposit  for 
that  purpose  when  the  bank  failed,  on  the  first  of  December. 
The  check  did  not  reach  the  bank  until  the  1st  of  December, 
when  jwyment  was  demanded  and  refused,  and  due  notice  of 
dishonor  given  to  the  defendant.  The  Cataract  City  Bank 
shortly  afterwards  went  into  the  hands  of  a  receiver,  and  the 
depositors  have  sustained  total  loss.  The  question  presented 
to  this  court  is,  whether  the  payees  or  their  endorsee  used  such 
a  degree  of  diligence  in  presenting  the  check  for  payment  as 
entitles  them  to  recover  the  money  from  the  maker.  The 
cheek  bears  date,  and  was  payable,  on  Saturday,  the  24th  of 
November,  but  it  was  not  presented  at  the  bank  for  payment 
until  Saturday,  December  1st. 

What  is  due  diligence  in  presenting  a  post  dated  cheek  for 
payment?  It  was  conceded,  on  the  argument,  that  check* 
jx>st  dated  are  not  entitled  to  days  of  grace.  Although  this 
check  was  payable  on  the  day  of  its  date,  ami  if  payment  had 
\**'i\  refused  by  the  bank  on  that  day  it  would  have  been  law- 
fully protested,  yet  the  holders  were  not  Ixmnd  to  make  the 
demand  on  that  day,  mercantile  usage  having  given  them  at 
least  tin-  next  business  day  to  present  it  at  the  counter  for  pay- 
ment, lirown*  cote,  2  Story  502. 

The  question  raided  in  this  case  is,  what  length  of  time  the 


FEBRUARY  TERM,  1863.  293 

Taylor  v.  Sip. 

holders  had  to  forward  the  check  to  the  bank  on  which  drawn, 
so  as  to  hold  the  maker  on  non-payment?  It  is  impossible 
to  lay  down  an  inflexible  rule  which  should  govern  all  cases 
of  checks.  Justice  Marcy  said,  in  the  case  of  the  Merchants 
Bank  v.  Spicer,  6  Wend.  445,  that  checks  are  considered  as 
having  the  character  of  inland  bills  of  exchange,  and  the 
holder  thereof,  if  he  would  preserve  his  right  to  resort  to  the 
drawer  or  endorsers,  must  use  the  same  diligence  in  pre- 
senting them  for  payment,  and  giving  notice  of  default  of 
the  drawee,  that  would  be  required  of  him  as  the  holder  of  an 
inland  bill.  I  think  that  this  is  stricter  law  than  is  required 
for  the  decision  of  this  case ;  because  an  inland  bill  must  be 
presented  for  payment  on  the  day  it  becomes  payable.  What 
shall  be  deemed  a  reasonable  time,  must  in  some  measure 
depend  on  the  circumstances  of  each  particular  case.  The 
court  say,  in  Murray  v.  Judith,  6  Cowen  490,  "as  a  general 
rule,  a  check  is  not  due  from  the  drawer  until  payment  has 
been  demanded  from  the  drawee,  and  refused  by  him.  As 
l)etween  the  holder  and  an  endorser,  payment  must  be  de- 
manded within  a  reasonable  time;  but  as  between  the  holder 
and  the  maker  a  demand  at  any  time  before  suit  is  sufficient, 
unless  it  appears  that  the  drawee  has  failed,  or  the  drawer, 
in  some  other  manner,  has  sustained  injury  by  the  delay." 
Chancellor  Kent  held,  "  If  the  drawer  of  a  check  suffers  by 
the  delay,  as  by  intermediate  failure  of  the  drawee,  he  may 
complain  of  delay  unreasonably  protracted.  If  the  holder 
unreasonably  delays,  he  assumes  the  risk  of  the  drawee's 
failure,  and  may,  under  the  circumstances,  be  deemed  to  have 
made  the  check  his  own,  to  the  discharge  of  the  drawer. 
"What  then  is  unreasonable  delay  ?"  If  a  person  in  Detroit 
should  to-day  make  a  check  upon  a  bank  in  the  city  of  New 
York,  it  would  not  be  required  of  the  payee,  in  order  to  hold 
the  maker,  that  he  should  have  the  check  presented  for  pay- 
ment until  it  could  be  forwarded-  and  received  in  the  city  by 
due  course  of  "mails;  and  if  the  bank  failed  during  that  interval 
of  time,  and  payment  should  on  that  account  be  refused,  the 
drawer  would  be  liable  to.  pay  the  money,  because  no  ordinary 


294         NEW  JERSEY  SUPREME  COURT. 

Taylor  v.  Sip. 

diligence  would  have  procured  an  earlier  demand.  The  dis- 
tance from  Hackettstown  to  Jersey  City  is  about  fifty  miles, 
and  the  case  shows  that  two  mails  passed  daily  between  those 
places.  The  distance  from  Jersey  City  to  Paterson  is  alxmt 
seventeen  miles,  and  it  appeared  that  two  mails  were  made  up 
and  sent  daily  between  those  places.  The  plaintiffs  became 
|>ossessed  of  the  check  thirty-one  days  before  the  day  of  its 
date,  and  the  Hackettstown  Bank  passed  the  net  proceeds 
of  the  discount  of  it  to  the  credit  of  the  plaintiffs  several  days 
before  the  check  was  payable,  and  no  satisfactory  reason  has 
been  shown  why  payment  was  not  demanded  at  an  earlier 
day.  The  counsel  of  the  plaintiffs  insisted,  that  the  bank 
employed  their  usual  mode  of  forwarding  their  receivables  to 
the  eastern  part  of  the  state  through  their  correspondents  in 
Newark,  and  hence  that  no  ktches  is  imputable  to  them  for 
not  having  the  check  at  the  counter  of  the  bank  in  Paterson 
at  an  earlier  day.  I  do  not  think  that  the  drawer  of  the 
check  is  answerable  for  the  consequences  of  delay,  resulting 
from  the  mode  which  the  Hackettstown  Bank  chose  to  adopt 
for  collecting  checks  on  other  banks.  If  a  week  was  re- 
quired for  transmitting  a  check  to  Paterson,  the  bank  should 
have  forwarded  it  to  Newark  lx?fore  it  was  payable,  so  that 
it  could  have  reached  the  drawee  within  a  reasonable  time. 
I  know  of  no  mercantile  rule  which  required  them  to  hold  it 
in  their  office  until  it  became  payable.  If  it  had  a  legal 
existence  for  discount  before  the  date,  it  had  the  same 
existence  for  transmission  for  collection.  It  was  sent  from 
Hackettstown,  on  Monday,  26th,  by  a  mail  which  would 
have  <-arried  it  to  Paterson  by  Tuesday  afternoon,  but  it  did 
not  reach  the  bank  until  the  following  Saturday.  It  is  true 
that  Thursday  was  a  public-  holiday,  but  the  mails  were  car- 
ried regularly  on  that  day,  and  there  was  no  public  necessity 
that  the  check  should  be  held  in  transitu  for  twenty-four 
hours  in  an  intermediate  bank,  to  the  loss  and  damage  of  the 
defendant  to  the  amount  of  the  check,  if  he  should  !>••  held 
liable  in  this  action.  The  check  would  have  been  paid  by 
the  l>ank  if  it  had  been  presented,  on  or  after  the  24th  of 


FEBRUARY  TERM,  1863.  295 

Taylor  v.  Sip. 

November,  and  before  Saturday,  the  1st  of  December.  Delay 
iu  presenting  a  check  for  payment  will  not  authorize  the 
maker  to  withdraw  from  the  bank,  or  otherwise  appropriate 
the  funds  which  the  fact  of  drawing  the  check  assumes  that 
lie  has  devoted  for  its  payment.  If  a  check  is  not  paid  in 
many  days  or  weeks  after  it  bears  date,  a  loss  of  interest  by 
the  holder  is  all  the  damage  which  can  result  to  any  person 
from  an  unreasonable  delay  in  procuring  payment.  But  if 
a  loss  is  to  be  sustained  from  the  failure  of  the  drawee,  while 
the  funds  are  on  deposit,  and  some  time  after  a  check  was 
payable,  some  party  connected  with  it  must  sustain  the 
damage.  The  question  then  arises,  upon  whom  shall  the 
loss  fall,  the  party  who  fulfilled  his  contract  by  providing 
the  funds  at  the  place  designated  in  the  check,  and  appro- 
priated them  to  the  payment  of  it,  or  the  party  who  failed  to 
call  for  his  money  within  a  reasonable  time  after  it  became 
due? 

The  delay  was  attempted  to  be  excused  under  the  rule 
which  has  been  established  for  regulating  the  transmission 
of  notices  of  protest  from  one  endorser  of  a  dishonored  note 
or  bill  to  another.  That  rule  allows  to  each  one  day  for  ad- 
vising a  prior  endorser. 

But  I  do  not  see  such  analogy  between  the  cases  as  can 
sanction  the  delay  which  attended  the  presentment  of  the 
check  in  suit  for  payment.  The  right  of  the  drawer  of  a 
check  to  be  absolved  from  liability,  when  a  loss  occurs  from 
the  subsequent  insolvency  of  the  bank  drawn  upon,  should 
not  be  made  to  depend  upon  the  mode  which  the  hol'der  of 
it  may  adopt  for  obtaining  his  .money  at  the  counter.  In 
all  cases,  a  check  should  be  presented  for  payment  within 
a  reasonable  time.  In  the  case  of  the  Mohawk  Bank  \. 
Broderick,  first  reported  in  10  and  afterwards  in  13  Wen- 
dell, the  endorsers  of  a  post  dated  check  were  prosecuted. 
A  special  verdict  showed  that  the  maker  of  the  check  had 
no  funds  in  the  bank  at  Albany,  on  which  it  was  drawn, 
on  the  day  of  the  date  of  the  check,  or  any  time  afterwards  j 
that  on  the  day  of  the  date  the  check  was  deposited  in  the 


296          NEW  JERSEY  SUPREME  COURT. 

Taylor  v.  Sip. 

Mohawk  Bank,  and  entered  as  cash  to  the  credit  of  the  de- 
]>ositors  ;  that  the  bank  did  not  send  it  forward  until  twenty 
days  had  expired,  becauses  they  made  exchanges  with  the 
l>ank  in  Albany  only  once  in  three  weeks,  and  that  during 
the  time  the  drawer  had  failed.  Although  he  had  not  pro- 
vided funds  in  the  bank  to  meet  the  check,  yet  as  he  had 
failed,  and  an  earlier  demand  might  have  saved  the  loss  of 
the  amount  of  the  check,  the  Court  of  Errors  in  New 
York  unanimously  decided,  that  the  holders  of  the  check 
were  chargeable  with  gross  negligence  in  presenting  the 
check  for  payment.  In  the  present  case  the  circumstances 
*how  that  the  loss  resulted  from  the  delay  which  occurred  in 
forwarding  the  check,  and  that  the  holders  did  not  exercise 
reasonable  diligence  in  seeking  to  obtain  payment  from  the 
bank. 


DYKE,  J.  The  plaintiffs  sue  the  defendant  on  a 
check,  given  by  him  to  them  for  $341.95,  on  the  Cataract 
Bank  at  Paterson.  The  check  was  in  fact  drawn  and  de- 
livered to  the  plaintiffs  on  the  24th  day  of  October,  I860, 
thirty-one  days  later.  It  was  presentable  for  payment  at 
the  bank  on  the  day  of  its  date,  and  not  before.  On  the  day 
when  the  check  was  so  presentable,  the  defendant,  as  the 
drawee,  had  the  money  in  the  bank  to  pay  it,  and  continued 
to  keep  it  there  for  six  days  thereafter,  but  the  check  was 
not  presented  at  the  bank  until  the  seventh  day  after  its 
date,  on  which  day  the  bank  failed.  The  check  was  not  paid, 
and  the  money  was  lost.  Now  here  was  great  negligence 
somewhere,  and  the  party  who  has  been  guilty  of  it  should 
be  the  loser.  It  could  not  have  been  the  defendant,  for  he 
met  every  obligation  which  rested  upon  him.  He  had  his 
money  at  the  bank  on  the  day  the  check  was  first  presentable 
for  imyment,  and  continued  it  there  for  several  days  there- 
after; and  the  evident  is  that  it  would  have  been  paid,  if 
preHcnU'd,  on  any  day  IxMween  the  23d  of  November  and  the 
1st  of  December  following. 

If  the  check  had  been  drawn  at  a  far  distant  point,  and 


FEBRUARY  TERM,  1863.  297 

Taylor  v.  Sip. 

had  been  dated  and  made  presentable  on  the  day  on  which  it 
was  drawn,  the  necessary  and  usual  time  for  its  transmission 
to  the  place  of  payment  would  have  been  allowed ;  but  that 
rule  has  no  application  at  all  here,  for  in  this  case  the  check 
was  actually  drawn  and  delivered  at  Paterson,  within  call  of 
the  bank  where  it  was  made  payable ;  and  there  is  no  reason- 
whatever,  except  the  mere  will  of  the  holders,  why  it  might 
not  have  been  deposited  in  the  bank  on  that  same  day  for 
payment  when  it  came  due.  And  then,  besides  this,  the- 
plaintiifs  had  thirty  days  longer  within  which  to  carry  or 
send  this  check  to  the  bank  for  payment;  and  when,  at  the 
end  of  six  days  later,  they  still  had  not  the  check  at  the- 
bank  for  payment,  and  by  means  of  which  the  money  de- 
posited to  pay  it  became  lost,  it  seems  impossible  to  avoid 
the  conclusion  that  the  negligence  and  want  of  due  diligence 
were  gross,  and  that  they  were  wholly  on  the  part  of  the- 
plaintiffs. 

It  is  a  matter  of  no  importance  where  the  check  was  be- 
tween the  time  when  it  was  drawn  and  the  time  when  it 
reached  the  bank,  as  no  reason  is  furnished  why  it  might 
not  have  been  presented  in  due  time.  Neither  the  plaintiffs, 
nor  any  other  person  in  whose  hands  they  may  have  placed 
the  check,  had  any  justification  for  retaining  it  until  it  was 
too  late  for  it  to  reach  its  destination  in  due  time,  and  then 
set  up  that  they  had  used  the  ordinary  channels  of  trans- 
mission. The  agents  employed  were  the  agents  of  the  plain- 
tiffs, and  their  failures  in  duty  were  the  failures  of  the  plain- 
tiffs. 

The  check  seems  to  have  been  placed  in  the  Hackettstown. 
Bank  a  few  days  before  its  date,  and  was  there  discounted; 
but  this  can  make  no  difference  to  the  defendant.  If  the  de- 
fault was  theirs,  it  may  be  that  the  plaintiffs  wore  not  bound 
to  take  it  up;  but  they  seem  to  have  done  so,  and  now  claim 
it  as  their  own,  and  have  brought  their  action  upon  it ;  and 
they  must  in  fliis  suit  bear  the  responsibility  of  all  the  delin- 
quencies that  have  occurred. 

The  ordinary  rules  of  commercial  and  mercantile  law  which 


298          NEW  JERSEY  SUPREME  COURT. 

Taylor  v.  Sip. 

apply  to  commercial  paper,  are  not  applicable  to  this  case.  If 
the  defendant  had  withdrawn  his  money  from  the  bank  on 
the  second  or  third  day  after  the  check  was  payable,  and  had 
then  denied  his  liability  upon  it  on  the  ground  that  it  had  not 
been  presented  in  due  time,  the  question  would  have  been  de- 
termined by  their  rules;  but  when  the  drawer  of  a  check  in 
good  faith  and  in  due  time,  places  his  money  in  the  bank  for 
the  purpose  of  its  payment,  and  does  not  withdraw  it  all,  but 
keeps  it  there  for  a  week,  that  the  holder  may  call  or  send  and 
get  it,  and  on  his  failure  to  do  so,  the  money,  in  consequence, 
is  lost  by  the  failure  of  the  bank,  the  question  must  be  de- 
termined by  the  ordinary  rules  of  law  and  justice.  These,  I 
think,  require  that  this  defendant  should  now  be  exempt  from 
the  payment  of  this  check. 

Verdict  set  aside. 


CASES  DETERMINED 


SUPREME  COURT  OF  JUDICATURE 


OF   THE 


STATE  OF  NEW  JERSEY, 
AT  JUNE  TERM,  1863. 


THE  STATE  v.  ISAAC  STONE. 

The  stealing  of  lead  water-pipe,  fixed   to  a  paper  mill,  is  indictable 
under  the  66th  section  of  the  statute  respecting  crimes.     Nix.  Dig.  188. 


For  the  State,  H.  C.  Pitney. 
For  the  defendant,  A.  W.  Cutler. 

VEEDENBURGH,  J.  The  defendant  was  convicted,  in  the 
Morris  Oyer,  of  stealing  two  hundred  pounds  weight  of  lead 
water-pipe,  fixed  to  a  paper  mill  of  Joseph  Alexander. 
Whereupon  the  court  reserved  the  question,  whether  the  de- 
fendant could  be  legally  convicted  under  the  statute.  Nix.  Dig. 
188,  §  66.* 

This  section  provides  that  if  any  person  shall  steal  or  shall 
rip,  cut,  or  break,  with  intent  to  steal,  any  lead  or  iron  bar, 
iron  rail,  iron  gate,  or  iron  palisade,  or  any  lock  fixed  to  any 
building  of  another,  he  shall  be  deemed  guilty  of  a  misde- 
meanor. 

*Reo.,p.  250,  g  132. 

299 


300         NEW  JERSEY  SUPREME  COURT. 

State  v.  Stone. 

It  is  contended,  oil  the  part  of  the  defendant,  that  the 
terms  of  the  act  do  not  include  lead  water-pipe,  but  only  lead 
bars ;  that  the  term  lead  is  used  as  an  adjective.  The  act  in 
question  is  a  copy  of  the  act  of  4th  George  2d,  chapter  32, 
with  the  exception  that  the  act  of  George  leaves  out  the 
word  "  or "  between  the  words  lead  and  iron,  so  as  to  read 
any  lead,  iron  bar,  iron  rail,  &c.  Was  the  insertion  of  the 
word  "or"  in  our  act  intended  to  limit  the  subject  of  the 
act,  so  as  to  embrace  only  lead  bars  fixed  to  a  building,  when 
by  the  act  of  4th  George  2d  all  lead  whatever  fixed  to  a 
building  is  included?  I  do  not  think  such  could  have  been 
the  intent  of  the  legislature.  The  word  lead  was  used  as  a 
substantive  clearly  in  the  act  of  George,  and  there  was  no 
reason  to  use  it  as  an  adjective  in  our  act  of  1796.  The 
same  reason  existed  for  using  it  as  a  substantive  in  our  act, 
as  in  that  of  George.  At  both  periods,  lead  was  affixed 
usually  to  buildings,  not  in  bars,  but  in  sheets,  for  roofing 
purposes.  On  account  of  its  extreme  malleability,  rogues 
were  in  the  habit  of  ripping  it  off'  the  roof.  If  our  legisla- 
ture of  1796  intended  to  use  the  word  lead  as  an  adjective, 
they  must  have  intended  to  deprive  the  act  of  nearly  all  its 
effective  force,  for  lead  in  bars  was  not,  either  at  the  time  of 
the  act  of  George  or  our  own  act  of  1796,  usually  affixed  to 
buildings  in  that  shape.  The  verb  "rip,"  also  in  the  act, 
applies  properly  to  lead  in  sheets,  on  the  roofing,  or  in  other 
sha|>es  than  bars.  Bars  of  lead  or  iron  might  be  broken  or 
cut,  but  with  re«|>ect  to  lead  in  that  shape  the  legislature 
would  hardly  apply  the  term  "  rip."  The  whole  context  also 
.shows  the  word  had  is  used  as  a  substantive.  If  it  was  used 
only  to  qualify  the  noun  "  bar,"  why  not  have  related  it, 
as  well  an  the  word  "  iron,"  before  each  of  the  other  nouns 
in  the  sentence;  so  as  to  read,  if  any  |>erson  shall  rip  any 
lend  or  iron  bar,  lead  or  iron  rail,  lead  or  iron  gate,  lead  or 
iron  palisade?  From  the  history  of  the  use  of  lead  in  build- 
ings, we  certainly  should  have  exjK-cted  our  legislature  to 
have  used  the  word  lead  in  the  same  sense  as  it  was  used  in 
that  of  George.  We  should  hardly  expect  the  legislature  to 


JUNE  TERM,  1863.  301 

Lyons  v.  Davis. 

go  to  the  trouble  of  protecting  lead  in  its  most  unusual  form, 
and  not  protecting  it  in  the  form  in  which  it  was,  when  our 
act  was  first  passed,  almost  exclusively  used.  From  the  soft- 
ness of  lead,  it  required  protection  in  all  its  forms ;  while  from 
the  hardness  and  tenacity  of  iron,  that  only  wanted  protection 
in  the  forms  specified  in  the  statute,  and  that  is  the  reason  of 
its  peculiar  language. 

The  Oyer  should  be  advised  accordingly. 

OGDEN  and  BROWN,  Justices,  concurred. 


LYONS  AND  BENNET  v.  JAMES  DAVIS. 

1.  This  court  will  not  weigh  the  evidence  on  a  certiorari,  and  will  not 
reverse,  unless  it  appears  that  some  principle  of  law  has  been  violated. 

2.  If  evidence  is  improperly  admitted  because  a  writing  was  not  pro- 
duced, this  court  will  not  reverse  if  the  writing  was  afterwards  given 
in  evidence. 


This  was  a  certiorari  to  the  Court  of  Common  Pleas  of  the 
county  of  Hudson  in  a  case  of  appeal  from  the  judgment  of 
a  justice. 

Argued  before  HAINES  and  ELMER,  Justices,  by  F.  JET. 
Teese,  for  plaintiffs,  and  8.  B.  Ransom,  for  defendant. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  The  state  of  demand  in  this  case  claimed  wages 
due  to  plaintiff,  from  October  20th,  1857,  to  January  20th, 
1858.  Judgment  was  rendered  on  the  appeal  in  favor  of  the 
plaintiff  below  for  forty-four  dollars  debt  and  costs. 

The  state,  jof  the  case  contains  the  evidence  on  both  sides 
at  length.  Its  relative  weight,  and  the  conclusions  of  fact  to 
be  drawn  from  it,  are  not  questions  to  be  considered  on  this 
certiorari.  Unless  it  appears  that  some  principle  of  law  has 

VOL.  i.  T 


302          NEW  JERSEY  SUPREME  COURT. 

Lyons  v.  Davis. 

been  violated,  to  the  prejudice  of  the  party  prosecuting  the 
writ,  the  judgment  must  be  affirmed. 

Evidence  was  produced  that  Davis  had  worked  for  Bennet 
&  Co.,  and  for  Bennet  alone,  before  the  partneYship  of  Lyons 
and  Beimel  was  formed,  which  was  on  the  20th  of  October, 
1857,  and  continued  until  the  20th  of  January,  1858,  when 
it  was  dissolved.  "Some  wages  were  due  him  for  work  pre- 
vious to  the  partnership  between  Lyons  and  Bennet.  When 
this  partnership  was  formed,  the  hands  previously  employed 
refused  to  continue  working,  unless  the  new  firm  would  pay 
the  arrearages,  which  both  of  them  agreed  to  do.  Davis  con- 
tinued to  work,  and  Bennet,  the  resident  partner,  from  time 
to  time  paid  him  money,  without  designating  whether  it  was 
paid  for  the  old  wages  or  on  account  of  the  new  firm.  The 
old  accounts  were  continued  in  the  books,  as  if  there  had  been 
no  change  of  partners.  After  the  dissolution  of  the  firm,  Mr. 
Lyons  sent  his  son  and  two  other  Arsons  to  settle  up  the 
books.  They  went  over  Davis'  account,  and  gave  him  a  small 
book  in  the  handwriting  of  the  son,  all  of  them  being  together, 
stating  the  balance  due  to  him  from  Lyons  &  Bennet  to  be 
$36.75,  and  for  this  sum,  with  interest,  the  judgment  appears 
to  have  been  rendered. 

It  is  immaterial  now  whether  other  evidence  in  the  case 
did  or  did  not  show  a  different  state  of  facts.  For  aught  that 
appears,  the  court  which  tried  this  case,  as  judges  of  the  fact 
as  well  as  of  the  law,  may  have  considered  the  weight  of  evi- 
dence to  have  established  the  facts  as  above  stated;  and  if 
they  did,  their  judgment  was  not  erroneous.  They  had  a 
right  to  infer,  and  we  must  presume  did  infer,  that  the  pay- 
ments made  to  Davis  by  Bennet  were  made  and  received  to 
pay  the  old  account  until  that  was  extinguUhed,  and  that  the 
balance  stated  in  the  book  to  remain  unpaid,  was  for  work 
done  for  the  new  firm. 

In  the  progress  of  the  trial,  the  witnesses  were  asked 
certain  questions  in  reference  to  the  agency  of  Lyons'  son,  and 
the  arrangement  between  Bennet  and  Lyons  about  paying  the 
wage*  due  the  hands,  and  as  to  what  Lyons  said  in  reference 


'jUNE  TERM,  1863.  303 

State  v.  Council  of  Newark. 

to  paying  them.  These  questions  were  objected  to  on  behalf 
of  the  defendants  below,  on  the  ground  that  the  articles  of 
partnership  and  of  dissolution,  which  were  in  writing,  were 
the  best  evidence  of  them,  and  ought  to  be  produced.  But 
it  appears,  by  the  case,  that  both  these  papers  were  subse- 
quently produced  and  read  by  the  defendants ;  so  that  if  the 
court  erred,  these  errors  became  wholly  immaterial,  and  were 
cured.  2  South.  765  ;  Kutzmeyer  v.  Ennis,  3  Dutcher  372. 

Even  if  these  errors  had  not  been  thus  rendered  immaterial, 
they  were  not  of  such  a  nature  as  would  have  materially  in- 
jured the  defendant,  and  would  not,  therefore,  have  justified 
a  reversal.  The  particulars  of  the  son's  agency  were  not  im- 
portant, and  the  declarations  of  Lyons,  as  to  paying  the  hands, 
were  facts  outside  of  the  writings. 

The  judgment  must  be  affirmed. 


THE  STATE,  JEREMIAH  DOYLE  &  CO.,  PROSECUTORS,  v. 
THE  MAYOR  AND  COMMON  COUNCIL  OF  THE  CITY  OF 
NEWARK. 

1.  The  charter  of  the  city  of  Newark  requires  certain  ordinances  to  be 
published  for  a  certain  time,  and  in  a  certain  manner,  between  their 
second  and  third  readings.     Such  an  ordinance  having  been  read  a 
second  time,  and  ordered  to  a  third  reading,  was  reconsidered  and 
taken  up,  and  the  vote  of  the  last  meeting  ordering  it  to  a  third  read- 
ing reconsidered,  and  a  section  of  the  ordinance  materially  amended. 
It  was  then,  at  the  same  sitting,  ordered  to  a  third  reading,  and  finally 
passed :  held,  that  when  the  vote  ordering  it  to  a  third  reading  was 
reconsidered,  and  the  proposed  ordinance  put  again  upon  its  second 
reading,  it  could  not  be  lawfully  read  again  without  the  notice  re- 
quired by  the  charter. 

2.  A  certiorari  for  the  purpose  of  removing  an  assessment,  brought  within 
a  reasonable  time  after  the  assessment  was  ratified  and  confirmed,  will 
not  be  dismissed  because  the  ordinance  which  is  thus  brought  inci- 
dentally in  question  was  passed  a  long  time  previous. 


On  (xrtiorari  to  remove  assessment. 


304          NEW  JERSEY  SUPREME  COURT. 


State  v.  Council  of  Newark. 


HAIXES,  J.  The  assessment  removed  by  the  writ  in  this 
case  is  clearly  defective,  and  as  to  the  prosecutors,  must  lie 
set  aside.  The  ordinance  providing  for  the  regulating,  grad- 
ing, and  paving  of  the  street  in  question,  and  under  which 
the  expenses  were  incurred,  was  not  lawfully  passed. 

First  It  was  not  in  pursuance  of  the  notice  of  the  pro- 
posed improvement. 

On  the  first  of  April,  1859,  a  resolution  was  passed,  ex- 
pressing the  intention  of  the  common  council  to  order  and 
cause  North  Broad  street  to  be  regulated,  graded,  and  worked 
to  the  established  grade,  &c.,  and  directing  the  street  com- 
missioners to  give  public  notice  of  that  intention.  Assum- 
ing that  the  notice  was  duly  given,  of  which  however  there 
is  no  evidence  before  us,  the  ordinance,  which  was  passed  to 
carry  into  effect  that  intention,  was  not  in  accordance  with 
the  notice.  The  grade  of  the  street  at  the  date  of  the  reso- 
lution, and  at  the  time  the  notice  should  have  been  given, 
was  that  which  had  been  established  on  the  6th  of  August, 
1852.  On  the  3d  of  June,  1859,  the  grade  was  altered. 

The  ordinance  for  improvement,  passed  June  17th,  1859, 
referred  to  the  grade  then  established,  the  grade  of  1859, 
and  not  to  be  that  of  1852,  which  was  the  established  grade 
contemplated  by  the  notice.  The  ordinance  referred  to  the 
grade  of  1859,  the  notice  to  that  of  1852.  Owners  of  prop- 
erty, who  saw  the  notice  of  the  intention  expressed  on  the 
Uret  of  April,  and  its  reference  to  the  then  existing  grade, 
may  have  been  satisfied  with  such  an  improvement,  and  have 
had  no  reason  to  make  objection  to  it,  and  yet  may  have  been 
surprised  and  aggrieved  by  an  ordinance  which  required 
them  to  work  to  a  different  grade,  and  which  they  had  no 
opportunity  to  oppose. 

Secondly.  The  ordinance  is  defective  for  the  further  rea- 
son, that  it  was  not  published  according  to  law.  The  29th 
section  of  the  charter  of  March  llth,  1857,  provides  that 
every  ordinance  involving  expenditure  of  money  or  affecting 
|>ersonal  property  shall  be  published,  for  the  space  of  ten 
days,  in  two  daily  newspapers  printed  and  published  in  the 


JUNE  TERM,  1863.  305 

State  v.  Council  of  Newark. 

city  of  Newark,  between  its  second  and  third  reading.  On 
the  third  of  June,  the  ordinance  in  question  was  read  the 
second  time,  and  ordered  to  have  a  third  reading.  On  the 
17th  of  June,  it  was  taken  up  on  a  third  reading,  and  on 
motion,  the  vote  of  the  last  meeting,  ordering  it  to  a  third 
reading,  was  reconsidered,  and  the  first  section  amended  by 
adding  the  words,  "except  the  westerly  side  thereof,  between 
the  Newark  and  Bloomfield  turnpike  and  the  line  of  Belle- 
ville township."  And  it  was  then,  at  the  same  sitting, 
ordered  to  a  third  reading,  and  finally  passed.  The  amend- 
ment was  in  a  material  matter.  It  excepted  from  the  pro- 
posed work  the  flagging  of  the  sidewalk  on  the  west  side  of 
much  the  larger  portion  of  the  street,  yet  no  notice  whatso- 
ever of  the  alteration  was  given,  or  of  the  proposed  ordi- 
nance as  so  amended.  That  which  had  been  published  pro- 
vided for  the  flagging  of  both  sides  of  the  street,  in  its  whole 
length ;  the  ordinance  passed,  excepted  the  flagging  of  nearly 
all  one  side  of  it ;  and  property  owners,  who  were  required 
to  pay  the  expenses  of  it,  may  with  propriety  allege  that  they 
are  aggrieved  thereby.  The  charter  contemplates  that  the 
common  council,  in  their  legislative  capacity,  act  in  accordance 
with  the  well  established  rules  of  parliamentary  bodies,  and 
that  all  amendments  are  made,  and  the  proposed  ordinance 
perfected  on  the  second  reading ;  and  that  the  notice  given 
between  the  second  and  third  reading  will  inform  parties 
interested  of  the  precise  character  of  the  improvement  in- 
tended. When  the  vote  ordering  it  to  a  third  reading  was 
reconsidered,  the  proposed  ordinance  was  again  put  upon  its 
second  reading,  and  could  not  lawfully  be  read  again  without 
the  notice  required  by  the  charter.  Had  such  notice  been 
given,  objections  might  have  been  presented,  and  reasons 
shown  to  prevent  the  final  passage.  In  the  absence  of  such 
notice,  parties  are  surprised  by  an  ordinance  quite  different 
from  that,  of  which  the  former  notice  was  given.  There 
were  other  "objections  presented  on  the  argument,  but  it  is 
unnecessary  to  consider  them  at  this  time. 

It  is  insisted,  on  the  part  of  the  defendants  in  certiorari, 


306          NEW  JERSEY  SUPREME  COURT. 

State  T.  Council  of  Newark. 

that  the  objections  to  the  proceedings  come  too  late.  It  is  true 
tlie  ordinance  was  passed  on  the  17th  June,  1859,  and  the 
writ  of  certiorarl  was  not  allowed  until  March,  1862.  But 
it  api>ears  that  the  assessment  complained  of  was  not  ratified 
and  approved  until  the  10th  February,  1862.  The  court,  in 
the  exercise  of  its  discretion  in  granting  writs  of  certiorari, 
has  usually  required  them  to  be  brought  within  a  reasonable 
time  after  the  cause  of  complaint  arose.  Had  this  writ  been 
directed  to  the  removal  of  the  ordinance  only,  it  would  have 
been  denies! ;  or  if  through  inadvertence  allowed,  it  would 
have  been  dismissed  as  soon  as  the  Inches  came  to  the  know- 
ledge of  the  court.  Ilaincs  v.  Campion,  3  Harr.  61 ;  State 
v.  Kingsland,  3  Zab.  85 ;  State  v.  Everett,  Ibid.  579  ;  State  v. 
Woodward,  4  Halst.  21 ;  State  v.  Newark,  1  DutcJier  400 ;  State 
v.  Jersey  City,  2  l>utcher  444 ;  State  v.  Jersey  City,  Malone, 
prosecutor,  decided  at  February  term,  1863.  Ante  247. 

But  the  writ  removes  also  the  assessment,  and  was  brought 
within  two  months  after  its  ratification  and  approval.  The 
ordinance  is  before  us;  and  as  it  is  the  foundation  of  the 
whole  proceedings,  we  are  obliged  to  examine  it,  in  order  to 
ascertain  the  validity  of  the  assessment,  and  it  is  thus 
brought  incidentally  in  question.  The  complaint  is,  that 
the  assessment  is  erroneous,  the  result  of  an  illegal  ordi- 
nance, and  that  the  prosecutors  are  aggrieved  by  it.  They 
could  not  know  how  it  would  affect  them  till  the  assessment 
was  made  and  ratified.  There  was  no  want  of  diligence  in 
prosecuting  the  writ  of  certiorari.  This  is  in  accordance 
with  the  opinions  expressed  in  the  cases  of  The  State  v. 
Newark,  1  Dulclier  400 ;  The  State  v.  Jersey  City,  2  Dutcfier 
444  ;  The  State  v.  City  of  Hudson,  5  DutcJier  475. 

Let  the  assessment,  as  to  the  prosecutors,  be  set  aside,  and 
for  nothing  holden. 

ELMER,  J.,  concurred. 

CITED  in  Slate  v.  Atlantic  City,  5  Vroom  101  ;  State,  Gregory,  prot.,  v.  Jer- 
My  C\ty,  6  Vroom  434  j  State  v.  BlaJce,  6  Vroom  213  ;  State  v.  Wett  Hoboken, 
ft  Vroom  82. 


JUNE  TERM,  1863.  307 


State  v.  Town  of  Bergen. 


THE  STATE,  JANE  VANHOEN,  PKOSECUTRIX,  v.  THE  TOWN 
OF  BERGEN. 

1.  The  council  has  no  right  to  assess  the  expenses  of  improving  a  street, 
incurred  by  individuals  by  authority  of  the  council,  which  was  not 
contracted  for  or  superintended  by  the  council. 

2.  The  decision  of  the  case,  5  Dutcher  266,  concurred  in.    The  assessors 
were  bound  to  show  that  they  took  into  consideration  all  the  real 
estate  of  the  town,  and  determined  what  part  was  benefited. 

3.  An  act  of  assembly,  directing  that,  in  case  an  assessment  should  be  set 
aside,  new  assessors  should  be  appointed,  held  not  to  authorize  a  new 
assessment  against  an  individual  whose  tax  was  not  set  aside,  but  had 
been  paid  and  accepted  by  the  council. 


This  was  a  certiorari  bringing  up  an  assessment  for  a  street 
improvement,  and  was  argued  before  Justices  HAINES  and 
ELMER,  by  £.  Williamson,  for  the  prosecutrix,  and  by  /.  W. 
Scudder,  for  the  town  of  Bergen. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  By  virtue  of  an  act,  approved  in  1855,  en- 
titled, "an  act  to  incorporate  the  town  of  Bergen,  in  the 
county  of  Hudson,"  the  council  of  that  town  passed  an  ordi- 
nance, in  1857,  for  the  regulation  and  grading  of  Washington 
avenue,  from  the  Communipaw  road  to  the  Jersey  City  and 
Bergen  plank  road. 

In  a  few  days  after  the  adoption  of  this  ordinance,  certain 
owners  of  property,  lying  in  that  part  of  said  avenue  from 
Communipaw  road  to  the  bridge  over  the  Morris  canal, 
which  is  between  the  two  roads  named,  petitioned  the  coun- 
cil in  writing  for  permission  to  grade  and  flag  the  same, 
which  was  granted.  Proposals  for  the  work  on  the  other 
part  of  the  avenue  were  received,  and  contracts  entered  into. 
The  council  took  no  part  in  contracting  for  or  superintending 
the  work  done  between  the  Communipaw  road  and  the  canal. 

Assessors ~were  appointed  to  assess  the  cost  and  expenses, 
•who,  in  February,  1858,  made  a  return,  assessing  upon 
several  land  owners  the  sum  of  $6369.44,  of  which  amount 


308      NEW  JERSEY  SUPREME  COURT. 

State  v.  Town  of  Bergen. 

The  sum  of  $1760.33  was  assessed  on  Mrs.  Vanhorn,  the 
present  prosecutrix.  This  assessment  was  confirmed  by  the 
council,  April  2d,  1858,  and  on  the  8th  of  the  month,  Mrs. 
Vanhorn  paid  it  to  the  treasurer  of  the  town,  and  it  was  for- 
mally accepted  by  the  council. 

It  would  seem  that  the  sura  so  assessed  did  not  include  the 
expense  of  improving  that  part  of  the  avenue  between  the 
Oommuuipaw  road  and  the  Morris  canal.  As  the  owners  of 
the  land  fronting  on  that  part  were  assessed  for  some  portion 
of  the  ex|>enses  incurred  for  improving  the  avenue  between 
the  canal  and  the  plunk  road,  several  of  them  sued  out  writs 
of  certiorari  from  the  Circuit  Court  of  the  county  of  Hudson, 
which  court  set  aside  the  confirmation  of  the  assessments  for 
the  want  of  due  notice,  and  ordered  the  assessments  and 
proceedings  to  be  remitted  to  the  council  to  proceed  anew. 
Thereupon  the  council  gave  a  new  notice  of  a  meeting  to 
confirm  said  assessment,  and  in  October,  1859,  did  formally 
confirm  it. 

After  this  second  confirmation,  eight  of  the  same  persons, 
who  had  prosecuted  the  writs  of  certiorari  issued  out  of  the 
Circuit  Court,  became  the  prosecutors  of  a  writ  of  certiorari 
issued  out  of  this  court,  and  such  proceedings  were  had  that, 
at  February  term,  1861,  this  court  adjudged  the  assessments 
and  proceedings  to  be  void,  and  ordered  that  the  same  be  set 
aside,  reversed,  and  for  nothing  holden  ;  and  that  the  prosecu- 
tors in  said  certiorari  l>e  restored  to  all  things  they  had  lost 
thereby.  It  apjx?ars,  by  the  rejwrt  of  the  case,  Slate  v.  Ber- 
gen, 5  Dutchcr  266,  that  this  judgment  was  made  on  the 
ground  that  the  assessors,  instead  of  assessing  all  the  owners 
of  land  in  the  town  who  were  IxMiefited  by  the  improvement, 
as  required  by  the  charter,  assessed  only  those  whose  pro- 
perty fronted  on  the  avenue,  or  who  petitioned  for  the  im- 
provement. 

In  March,  1859,  a  supplement  to  the  charter  was  passed 
(Pamph.  net*,  p.  271,)  providing,  that  in  case  any  assessment 
or  estimate  of  value,  made  by  commissioners  or  freeholders, 
should  IK?  set  aside,  in  whole  or  in  |>art,  by  any  court  or  by 


JUNE  TERM,  1863.  309 


State  v.  Town  of  Bergen. 


the  councilmen,  &c.,  it  should  be  lawful  for  the  councilmen  to 
appoint  three  freeholders,  who  should  proceed  to  make  such 
assessment,  in  whole  or  in  part,  as  the  case  might  require, 
which  assessment  should  include  the  expenses  of  the  work 
done  and  materials  furnished,  with  interest  thereon,  &c. 

By  virtue  of  this  act,  the  council,  in  January*  1862,  ap- 
pointed new  assessors,  to  assess  the  costs  and  expenses  of 
grading  and  regulating,  and  laying  sidewalks,  &c.,  upon  Wash- 
ington avenue,  from  the  Comrnunipaw  road  to  the  plank  road. 
In  March,  these  assessors  presented  their  map  and  report, 
which,  in  April,  were  confirmed. 

This  assessment  is  for  the  aggregate  sum  of  $19,917.77, 
there  having  been  added  to  the  sum  originally  assessed 
$9440.64,  for  the  work  done  between  the  Communipaw  road 
and  the  Morris  canal,  with  interest  from  the  date  of  the 
confirmation  of  the  first  assessment  and  sundry  incidental 
expenses.  Mrs.  Vanhorn  is  now  assessed  the  sum  of  $6403.97, 
and  the  question  to  be  decided  is,  whether  it  has  been  legally 
imposed  on  her. 

In  my  opinion  this  assessment  was  altogether  unwarranted 
and  illegal. 

First.  Because  the  assessment  originally  made  on  her  was 
never,  within  the  meaning  of  the  supplement  of  1859,  set 
aside.  It  is  true  the  judgment  of  this  court  was  rendered  in 
general  terms,  that  the  assessments  and  proceedings  should 
be  set  aside,  reversed,  and  for  nothing  holden  ;  but  the  mean- 
ing and  effect  is,  that  it  was  set  aside  as  against  the  prosecu- 
tors, who  alone  were  to  be  restored  to  all  things  they  had 
lost  thereby.  The  well  understood  practice  of  the  court  is 
not  to  allow  a  certiorari  to  question  and  set  aside  assessments 
in  gross,  but  only  to  bring  up  those  made  upon  the  prosecu- 
tors named  in  the  writ;  and  if  the  original  proceedings  are 
defective,  only  to  set  aside  such  assessments.  1  Dutcher  400. 
The  'present  prosecutrix  was  no  party  in  the  case  decided : 
she  had  not  complained  of  the  assessment,  but  on  the  con- 
trary, had  paid  the  amount  claimed  of  her.  The  whole 
assessment  was  adjudged  to  be  illegal,  and  of  course  it  was 


310          NEW  JERSEY  SUPREME  COURT. 


State  v.  Town  of  Bergen. 


illegal  as  to  her;  but  having  acquiesced  in  it,  and  paid  the 
money,  and  the  council  having  accepted  it,  the  proceeding,  as 
to  her,  was  final,  and  concluded  both  parties. 

Secondly.  The  charter  of  1855  was  loosely  drawn,  but  I 
think  the  fair  interpretation  of  it  is,  that  the  council  could 
only  order  assessments  for  money  expended  by  them,  under 
their  express  suj>ervision  and  authority.  They  had  no  power 
to  subject  proj>erty  owners  to  such  expenses  for  improve- 
ments, as  other  interested  parties  might  think  proper  to  incur 
with  their  consent  and  acquiescence.  It  is  plain,  that  the 
alleged  cost  of  the  work  between  the  Communipaw  road  and 
the  canal,  was  not  an  expense  incurred  by  the  council ;  they 
did  not  contract  for  it,  did  not  superintend  it,  or  in  any  way 
control  it,  and  had  not  paid,  or  rendered  themselves  liable  to 
pay  any  jwrt  of  it,  when  the  assessment  was  made. 

Thirdly.  The  assessment  was  not  made  upon  the  principle 
required  by  the  charter.  The  opinion  pronounced  in  this 
court,  when  the  first  assessment  was  before  it,  appears  to  me 
to  be  correct.  But  whether  it  is  or  not,  until  reversed  by  a 
higher  court,  it  must  be  respected  and  conformed  to  by  all 
inferior  tribunals  as  the  law. 

This,  I  think,  was  not  done  by  the  new  assessors.  They 
do  n«»t  certify,  in  the  words  of  the  charter,  that  they  assessed 
"  upon  principles  of  equity  and  according  to  the  damage  or 
benefit  the  owner  or  owners  thereof  may  derive  therefrom, 
the  n-al  estate  in  said  town." 

They  certify  that  they  made  the  assessment  upon  principles 
of  equity,  and  that  "  we  did,  in  our  judgment,  consider  and 
adjudge  that  the  owners  of  the  said  several  lots  and  plots  of 
ground  were  the  parties  l>enefited,  and  UJHMI  whose  lots  and 
plots  the  assessment  should  l>c  made;"  but  this  language  does 
not  imply  that  they  took  into  consideration  all  the  real  estate 
in  the  town,  and  determined  what  part  of  it  and  how  far  it 
was  Ix-nefited  or  damaged,  and  assessed  accordingly.  It  is 
plain  from  the  whole  -  a---,  1  think,  that  they  did  not  do  this. 

We  were  referred  to  the  28th  section  of  the  new  charter, 
grunted  in  1862,  (Pamph.  «c/x,  p.  173,)  as  sanctioning  the  priti- 


JUNE  TERM,  1863.  311 

Parker  v.  Thompson. 

ciple,  that  only  the  property  fronting  upon  the  improvement 
can  justly  be  assessed.  But  the  entirely  different  language  of 
this  act  serves  to  show  very  clearly,  that  the  true  meaning  of 
the  original  charter  was  very  different.  Upon  referring  to  the 
27th  section  of  the  new  act,  it  will  be  seen  that  the  rights  of 
the  property  owners  are  carefully  guarded,  by  requiring  a  pre- 
liminary estimate  and  assessment  of  the  costs  to  be  filed,  and 
by  putting  it  in  the  power  of  the  owners  of  two-thirds  of  the 
lands  to  be  assessed  to  arrest  the  proceedings.  Nothing  of 
this  kind  was  contained  in  the  charter  under  which  the  assess- 
ment in  question  was  made,  there  not  being  the  same  reason  for 
it  as  now,  that  the  whole  expense  of  an  improvement  is  to  be 
borne  by  those  owning  the  property  where  it  is  made,  although 
other  property  owners  may,  in  fact,  be  the  most  benefited.  The 
assessment,  as  against  the  prosecutrix,  must  be  set  aside. 

Assessment  set  aside. 

CITED  in  State  v.  Gardner  et  al.,  5  Vroom  331 ;  Slate,  Little,  pros.,  v.  New- 
ark, 7  Vroom  172. 


CHAELES  I.  PAEKEE  AND  LEWIS  L,  PAEKEE  v.  JOSEPH  C. 
THOMPSON. 

1.  It  seems  that  the  representatives  of  one  of  the  defendants  in  a  joint  judg- 
ment who  has  died  may  be  sued,  although  the  other  defendant  is  living. 

2.  The  plaintiff  in  an  action  against  executors  of  their  own  wrong  is  not 
a  competent  witness. 

3.  The  judgment  against  executors  of  their  own  wrong  should  be  special, 
and  not  general. 

This  was  a  certiorari  to  a  justice  of  the  peace,  before  whom 
the  action  was  tried,  and  judgment  rendered  in  the  absence  of 
the  defendants.  Argued  before  Justices  HAINES  and  ELMER, 
by  /.  D.  JBedle,  for  the  plaintiffs  in  this  court,  and  by  F. 
Kingman,  for  the  defendants. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  The  plaintiff  in  the  justice's  court,  who  is  the 
defendant  in  this  certiorari,  sued  the  defendants,  as  executors 
of  their  own  wrong  of  Mary  Parker,  deceased,  to  recover  the 


312         NEW  JERSEY  SUPREME  COURT. 

Parker  v.  Thompson. 

am.  in  nt  of  a  judgment  obtained  by  him  against  Joseph  Parker, 
who  is  still  living,  and  the  said  Mary  Parker. 

It  i-  now  objected  that  this  action  cannot  be  sustained.  I  am 
not  satisfied,  however,  notwithstanding  what  was  said  by  one 
of  the  judges  in  the  case  of  Wade  v.  Potter,  2  Green  278,  that 
our  statute  does  not  cover  this  case.  Nix.  Dig.  542,  §  4.*  The 
words  are,  that  the  representatives  of  one  jointly  bound  with 
another  for  the  payment  of  any  debt  may  be  charged,  by  virtue 
of  such  obligation,  as  if  the  obligators  had  been  bound  sever- 
ally as  well  as  jointly,  and  are,  in  my  opinion,  broad  enough  to 
cover  the  case  of  two  or  more  jointly  bound  by  a  judgment. 
There  is  no  force  in  the  objection,  that  if  a  new  judgment  may 
be  obtained  against  the  representatives  of  one  who  is  deceased, 
there  will  be  two  judgments  for  the  same  debt ;  this  being  no 
more  than  what  may  happen  in  any  case  where  two  or  more  are 
bound  severally.  But  it  is  not  necessary  to  decide  this  question. 

The  judgment  is  erroneous  for  other  reasons.  It  appeal's, 
by  the  transcript  of  the  justice,  that  the  only  evidence  of  the 
plaintiff's  demand  was  his  own  testimony  and  the  record  of 
the  original  judgment.  The  defendants  being  sued  in  a  re- 
presentative capacity,  the  plaintiff  was  not  a  competent  wit- 
ness. There  was  therefore  no  legal  evidence  to  charge  the 
defendants  as  executors  of  their  own  wrong. 

The  judgment  against  executors  must  be  special,  and  not 
general.  Penn.  457;  Soutfi.  686;  1  Hm's  Ex'rs  142.  Our 
statute,  Nix.  Dig.  255,  §  9,f  provides  that  executors  of  their 
own  wrong  shall  be  answerable  so  far  only  as  the  goods  and 
debts  coming  to  their  hands  will  satisfy.  If  facts  are  proved 
in  a  justice's  court  to  render  them  liable,  the  judgment  should 
be  that  the  plaintiff*  recover  the  debt  and  costs,  to  be  levied 
out  of  the  assets  of  the  testator,  if  the  defendant  have  so 
much,  but  if  not,  then  t>  levy  so  much  as  they  are  liable  for 
and  the  costs  out  of  their  own  goods. 

The  judgment  mu.-t  be  reversed. 

Ciit.D  in  /'',  i/iy.-.n  v.  ./•.liiifin,  11   Vrnom  222. 
•  Jta:,  ;..  7  I'.'.  \  3.     f  Rev^  p.  3%,  {  3. 


JUNE  TERM,  1863.  313 


Beneficial  Society  of  Burlington  v.  White. 


THE  BENEFICIAL  SOCIETY  OF  THE  CITY  OF  BUELINGTON 
v.  TYLEE  W.  WHITE. 

A  state  of  demand  against  a  beneficial  society  claiming  a  balance  alleged 
to  be  due  during  the  plaintiff's  sickness,  at  the  rate  of  three  dollars 
per  week,  "  the  sum  paid  by  said  society  to  the  sick  of  said  society," 
held  not  to  contain  a  legal  cause  of  action. 


This  was  a  certiorari  to  the  Common  Pleas  of  the  county 
of  Burlington,  in  a  case  of  appeal  from  the  judgment  of  a 
justice ;  argued  by  F.  Kingman,  for  plaintiff,  and  A.  Brown- 
ing, for  defendants,  before  HAINES  and  ELMER,  Justices. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  No  principle  is  better  settled,  than  that  a  state 
of  demand  which  does  not  state  facts  enough  to  establish  the 
liability  of  the  party  sued,  without  the  necessity  of  supplying 
other  facts  by  proof,  is  radically  defective,  and  will  not  sup- 
port a  judgment.  Unfortunately  for  the  plaintiff  in  the  court 
below,  who  we  must  presume  has  a  meritorious  claim  against 
the  defendants,  he  has  failed  to  show  it  to  be  legal.  His  de- 
mand is  for  the  balance  alleged  to  be  due  him  from  a  benefi- 
cial society  during  his  sickness,  thirty-five  weeks  and  one  day, 
at  the  rate  of  three  dollars  per  week,  "  the  sum  paid  by  said 
society  to  the  sick  of  said  society ;"  but  he  does  not  state  how 
the  obligation  to  pay  this  money  arises,  what  the  rules  and 
regulations  in  regard  to  beneficiaries  are,  or  that  he  has  com- 
plied with  such  rules ;  all  of  which  was  necessary  to  render 
them  liable  to  an  action. 

The  judgment  must  be  reversed. 


314          NEW  JERSEY  SUPREME  COURT. 


Tice  v.  Reeves. 


REBECCA  A.  TICE  v.  MOSES  E.  REEVES. 

In  a  suit  by  the  mother  against  the  father  for  the  support  of  their  child, 
it  is  incompetent  fur  the  mother  to  prove  that  the  father  has  made 
parol  admissions  that  they  have  been  divorced. 


On  case  certified  from  the  Essex  Circuit. 

The  plaintiff  brought  her  suit  against  the  defendant  for  the 
Bup]K>rt  and  maintenance  which  the  plaintiff,  as  mother,  had 
provided  for  their  child.  Some  time  after  marriage  the  parties 
separated,  and  plaintiff  married  a  second  time  to  a  man  named 
Tice,  who  died  some  three  years  before  the  suit  was  brought. 
After  his  death,  the  child  was  supj)orted  entirely  by  the  plain- 
tiff. The  defendant  refused  to  contribute  to  the  support,  alleg- 
ing, as  a  reason,  that  the  child  was  not  his,  having  been  born 
six  months  only  after  the  marriage. 

On  the  trial,  there  was  a  verdict  for  the  plaintiff,  subject  to 
the  opinion  of  the  court  at  bar  on  several  questions,  which 
were  duly  certified.  The  principal  one  was  as  to  the  admis- 
sion of  |>arol  evidence,  offered  on  the  part  of  the  plaintiff  to 
prove  the  admission  of  defendant  that  he  had  been  divorced 
from  the  plaintiff.  This  evidence  was  admitted  by  the  court, 
and  there  was  a  verdict  for  the  plaintiff.  It  was  now  insisted 
that  the  evidence  was  incompetent. 

For  the  plaintiff,  G  Parker. 
For  the  defendant,  0.  S.  Hakled. 


,  J.  The  plaintiff  was  married  to  the  de- 
fendant at  Newark,  in  thi.s  state,  on  the  15th  November, 
1849,  and  six  months  afu-nvards  had  a  child.  The  plaintiff 
was  again  married,  six  or  HCVCII  years  ago,  to  one  Tice,  who 
died  al  tout  three  yean*  ago,  and  since  his  death  the  plaintiff 
luw  always  supported  the  rhild.  About  two  yean  ago,  the 
plaintiff  applied  to  the  defendant  to  pay  the  board  of  the 


JUNE  TERM,  1863.  315 


Tice  v.  Reeves. 


child,  who  refused  because,  as  he  said,  the  child  was  not  his. 
One  of  the  plaintiff's  witnesses  was  asked,  has  the  defendant 
ever  admitted  to  you  that  he  had  been  divorced  from  the 
plaintiff?  which,  being  objected  to,  was  admitted  by  the  court, 
and  the  witness  answered  that  he  had  often,  and  that  the 
defendant  was  now  married  to  another  woman. 

The  first  question  certified  is,  whether  this  question  and 
answer  were  legal  ? 

It  is  clear  that,  unless  divorced,  the  wife  could  not  bring 
this  suit  against  the  husband ;  she  could  only  bring  .it  upon 
the  assumption  that  the  relation  of  husband  and  wife  did  not 
exist  at  the  time  of  the  institution  of  the  suit.  This  is  sought 
to  be  proved  by  a  parol  admission  by  him,  that  they  had 
been  divorced.  The  fact  stated  by  the  witness,  that  the 
defendant  had  married  again,  may  prove  bigamy,  but  cannot 
prove  divorce.  The  question  therefore  rests  upon  the  com- 
petency of  the  question,  "  Has  the  defendant  ever  admitted 
to  you  that  he  has  been  divorced  from  the  plaintiff,"  and  the 
answer,  "  He  has  often." 

It  appears  to  me  that  the  question  is  incompetent.  In  the 
first  place,  it  is  not  specific  enough.  It  does  not  specify  whether 
it  was  a  divorce  a  mensa  et  thoro,  or  a  vinculo  matrimonii, 
and  therefore  the  answer  can  prove  nothing.  How  can  we 
infer  from  the  question  and  answer  the  one  more  than  the 
other,  and  yet  both  are  equally  recognized  by  our  laws. 

But  again,  even  if  the  question  had  been  asked  specifically, 
if  the  defendant  had  admitted  he  had  been  divorced  a  vinculo 
matrimonii,  it  was  incompetent  to  prove  it  by  parol.  The 
plaintiff  was  married  in  1849.  The  presumption  is,  if  divorced 
at  all,  it  was  by  the  authorities  of  this  state,  there  being 
no  proof  or  admission  that  it  was  done  anywhere  else.  Since 
1849,  it  could  only  be  by  decree  in  Chancery,  and  the  best 
evidence  of  that  is  the  decree  itself,  or  a  duly  certified  copy 
of  it.  It  would  be  utterly  inadmissible  to  prove  the  contents 
of  such  decree  by  parol.  By  the  terms  of  the  statute,  Nix. 
Dig.  224,  §  9,  the  Court  of  Chancery  may  take  such  order 
touching  the  care  and  maintenance  of  the  children  by  the 


316          NEW  JERSEY  SUPREME  COURT. 

Fanner*  and  Mechanics  Bank  v.  Green. 

husband  as  may  be  reasonable  and  just;  and  so  this  very 
question  may  have  been  adjudicated  by  the  proper  tribunal. 
Is  this  all  to  be  a  matter  resting  on  parol  proof,  when  the 
record  evidence  is  within  reach  ? 

The  presumption,  in  the  absence  of  all  proof  to  the  con- 
trary, is  that  if  there  was  a  divorce  at  all,  it  must  have  been 
made  in  our  Court  of  Chancery,  and  that  the  Chancellor 
regulated  and  provided  in  the  decree  for  the  proper  support 
of  this  child  by  the  husband,  and  the  remedy,  if  any,  is  upon 
the  decree  itself. 

The  principle  recognized  in  sections  96  and  97  of  Green- 
leaf's  Evidence,  to  which  we  are  referred,  is  quite  different 
from  this. 

This  result  makes  it  unnecessary  to  examine  the  other 
questions  raised.  The  verdict  below  should  be  set  aside. 

OQDEN  and  BROWN,  Justices,  concurred. 


THE  FARMERS  AND  MECHANICS  BANK  v.  ENOCH  W.  GREEN. 

A  firm  in  the  country  was  dissolved  in  1849,  and  no  notice  of  dissolution 
given.  In  1860,  one  of  the  partners  drew  a  note,  and  signed  to  it  the 
name  of  the  firm  without  the  knowledge  or  consent  of  the  other  part- 
ner, and  such  paper  was  discounted  by  a  bank  in  Philadelphia  with- 
out inquiry.  Held,  that  such  note  was  not  binding  on  the  firm. 

This  suit  was  brought  by  the  plaintiff  to  recover  the 
amount  of  a  promissory  note  for  $409.21,  with  interest.  The 
issue  wan  tried  at  the  Mercer  Circuit,  and  a  verdict  rendered 
for  defendant.  A  rule  was  granted  to  show  cause  why  the 
verdict  should  not  be  set  aside.  The  facts  of  the  case  are 
fully  shown  in  the  opinion  of  the  court 

For  the  plaintiff,  M.  Seasley. 
For  the  defendant,  F.  Kint/man. 


JUNE  TERM,  1863.  317 

Farmers  and  Mechanics  Bank  v.  Green. 

VREDENBURGH,  J.  This  was  an  action  brought  by  the 
bank  against  the  defendant,  as  one  of  the  drawers  of  a  prom- 
issory note,  of  which  the  following  is  a  copy : 

$409.21.  GREENSBURGH,  N.  J.,  June  27,  1860. 

Five  months  after  date,  we  promise  to  pay  to  the  order  of 
Green,  Brother  &  Cooper,  four  hundred  and  nine  ^  dollars, 
without  defalcation.  Value  received. 

Payable  at  Philadelphia,  at  118  Walnut  st. 

ENOCH  W.  GREEN  &  Co. 

Endorsed  Green,  Brother  &  Cooper. 

It  was  proved,  at  the  trial,  that  this  note  was  discounted  by 
the  plaintiff  in  the  regular  course  of  its  business. 

The  defence  set  up  was,  that  at  the  date  of  the  note  there 
was  not,  and  had  not  been  for  several  years,  such  a  firm  as 
that  of  Enoch  W.  Green  &  Co. ;  that  the  note  was  made  by 
Philip  Green,  who  drew  it,  and  signed  thereto  the  name  of 
Enoch  W.  Green  &  Co.  without  the  knowledge  or  consent  of 
the  defendant,  procured  the  note  to  be  discounted,  and  ap- 
propriated the  proceeds  to  his  own  use.  It  appeared  in  evi- 
dence that  Philip  Green  and  Enoch  W.  Green  were  brothers, 
and  that  Philip  died  the  29th  of  October,  1860. 

I  think  the  jury  were  warranted  by  the  evidence  in  finding 
the  following  facts : 

1st.  That  at  the  giving  of  the  note  there  was  no  such  firm 
in  existence  as  Enoch  W.  Green  &  Co. 

2d.  That  the  note  in  question  never  was  drawn  or  signed 
by  Enoch  W.  Green,  or  with  his  knowledge  or  procurement. 

3d.  That  the  note  was  made  and  signed  by  Philip  Green, 
for  his  own  use,  and  so  appropriated  without  the  knowledge 
or  consent  of  the  defendant. 

4th.  That  if  any  such  firm  as  Enoch  W.  Green  &  Co.  ever 
existed,  it  was  dissolved  so  early  as  1849. 

5th.  That  no  business  had  ever  been  done  between  the 
plaintiffs  and  the  firm  of  Enoch  W.  Green  &  Co,  prior  to  the 
dissolution  as  aforesaid. 

No  notice  of  the  dissolution  was  given.     But  the  jury  may 

VOL.  i.  u 


318          NEW  JERSEY  SUPREME  COURT. 

Farmers  and  Mechanics  Bank  v.  Green. 

liave  gone  UJK>II  a  another  ground,  viz.  that  although  the  plain- 
tiffs may  never  have  had  any  notice  of  dissolution  of  the  old 
firm  of  E.  W.  Green  &  Co.,  yet  that  if,  after  the  actual  disso- 
lution of  the  old  firm,  the  plaintiff,  as  a  new  customer,  saw 
fit  to  come  in  and  deal  with  one  of  the  partners,  as  if  the- old 
firm  was  still  in  existence,  without  inquiry,  that  he  did  so  at 
his  own  jieril. 

It  Is  a  principle  of  law,  that  if  a  retiring  partner  gives  no 
.notice,  then  a  customer  of  the  firm  accustomed  to  trade  with 
the  firm  on  the  responsibility  of  all  the  partners,  not  knowing 
of  the  retirement,  may  hold  such  retiring  partner  for  a  debt 
contracted  with  the  firm  after  the  retirement.  But  a  new  cus- 
tomer generaSy  cttnnot.  1  Par.  on  Contracts  145.  This  raises 
two  questions. 

1st  Had  the  jury  a  legal  right  to  conclude,  from  the  evi- 
dence, that  the  plaintiff  had  ever  dealt  with  the  old  firm  of 
E.  W.  Green  tfc  Co.  prior  to  the  dissolution  ? 

2d.  If  the  plaintiff  had  not  so  dealt,  is  there  anything  in 
this  case  to  take  it  outside  of  the  general  rule? 

This  first  leads  to  an  examination  of  the  evidence  upon  the 
following  questions : 

1st.  What  is  the  evidence  nj>on  the  question,  whether  there 
was  any  sn«-h  partnership  at  all  its  that  of  E.  W.  Gree«  &  Co.? 

2d.  If  there  was,  when  did  it  commence  and  when  did  it 
end? 

3d.  Whon  did  the  plaintiff  commence  to  deal  as  if  with  the 
firm  of  E.  W.  Green  iv.  Co.? 

4th.  What  circumstances  are  there,  if  any,  which  would 
take  this  ease  out  of  the  general  rule  of  law,  which  prohibits 
a  new  customer  from  holding  a  firm  responsible  for  an  act  of 
one  of  the  partners,  after  dissolution  without  notice? 

First,  as  to  the  proof  that  there  ever  was  such  a  partner- 
fillip  at  all  a«*  that  of  E.  W.  Green  &  Co. 

Tin-  only  art  ever  proved  (<>  have  l)ocn  done  by  E.  "W.  Green 
from  which  a  partnership  could  l>c  inferred,  as  against  him, 
is  that,  in  1H13,  he  wrot«-  the  name  Enoch  W.  Green  & 
Co.  in  tin-  signature  Ixiok  of  the  Trenton  Hanking  Company. 


JUNE  TERM,  1863.  319 

Farmers  and  Mechanics  Bank  v.  Green. 

The  proof  is  that  Enoch  "W.  Green  never  bought  or  sold 
an  article  for  or  in  the  store,  was  never  there  in  any  other 
capacity  than  as  an  ordinary  customer,  never  drew  or  paid  a 
note,  was  never  consulted  about  anything.  He  was  in  every 
other  respect,  except  as  to  this  signature  in  the  bank,  an  utter 
stranger  to  the  whole  business. 

O 

There  is  one  other  fact,  not  an  act,  so  far  as  the  proof  goes, 
of  E.  "W.  Green,  that  a  sign  lettered  Enoch  W.  Green  &  Co. 
was  put  upon  a  bridge  belonging  to  Philip  Green  for  some 
time.  But  the  evidence  is,  that  he  protested  against  its  being 
so  up.  He  always  protested  he  was  no  partner.  Philip 
always  averred  he  was  no  partner.  Philip  did  all  the  busi- 
ness, and  took  all  the  proceeds.  There  is  not  the  slightest 
proof  that  Enoch  ever  received  or  claimed  a  cent  from  the 
firm  in  any  shape  whatever.  There  is  no  evidence  that  the 
plaintiff  ever  knew  of  this  signature  in  the  bank.  This 
alleged  store  was  a  small  shanty  in  the  country,  on  the  canal 
near  Trenton,  having  in  it  from  $100  to  $250  worth  of  the 
two  great  staples  in  trade,  rum  and  tobacco,  while  the  store  of 
Green,  Brother  &  Cooper  was  a  large  concern,  at  118  Walnut 
street,  Philadelphia,  and  the  plaintiff  one  of  the  largest  banks 
in  the  city  of  Philadelphia. 

Can  we  say  that  the  jury  could  not  legally  conclude,  from 
these  facts,  that  there  never  had  been  any  such  partnership  at 
all  as  that  of  E.  W.  Green  &  Co.  ?  Might  not  the  jury  legally 
conclude,  that  inasmuch  as  the  defendant  received  no  part  of 
the  profits,  and  meddled  in  no  way  with  the  concern,  that  the 
signature  in  the  bank  was  only  to  give  his  brother  Philip 
credit  in  that  particular  bank,  which  would  make  the  de- 
fendant liable  in  that  bank  as  a  partner ;  but  which  other 
banks,  acting  without  any  knowledge  of  such  signature,  would 
have  no  right  to  use  as  proof  of  partnership  as  between 
him  and  them  ?  And  as  regards  the  sign,  there  is  no  evi- 
dence that  it  was  put  up  by  Enoch,  or  even  assented  to  by 
him;  it  was  not  put  on  his  building,  or  on  a  store  con- 
taining any  goods  he  claimed  to  be  interested  in,  but  put 
upon  Philip's  building,  and  in  the  goods  in  which  he,  Philip, 


320          NEW  JERSEY  SUPREME  COURT. 


Farmers  and  Mechanics  Bank  v.  Green. 


claimed  to  be  sole  owner.  The  evidence  is,  that  Enoch  pro- 
tested against  it,  until  he  finally  prevailed  with  his  brother 
Philip  to  take  it  down.  Now  had  not  the  jury  the  right  to- 
infer  that  the  sign  was  put  up  and  kept  up  without  Enoch's 
consent,  and  therefore  legally  conclude  that  there  never  was 
any  partnership  at  all  ?  Now  it  might  be  that  the  signature 
of  E.  W.  Green  &  Co.  and  the  sign,  might  make  Enoch  liable 
to  third  persons,  if  they  discounted  this  note  on  the  faith  of 
these  acts,  even  if  Enoch  and  Philip  were  not  partners  in 
this  alleged  firm  of  E.  W.  Green  &  Co. ;  but  then  it  should 
appear  that  they  discounted  this  note  by  reason  of  their 
knowledge  of  this  signature  in  the  bank  and  the  sign,  and 
were  deceived  thereby.  But  here  there  is  no  such  evidence. 
So  that,  so  far  as  regards  the  plaintiff  here,  the  jury  had  a 
right  to  infer  from  the  evidence — first,  that  there  was  in  fact 
no  |>artnership ;  and  second,  that  Enoch  W.  Green  had  done,, 
or  permitted  nothing  to  be  done,  which  induced  the  plaintiff 
to  give  credit  to  this  paper  in  the  name  of  E.  W.  Green  & 
Co.  Indeed  the  weight  of  the  evidence  appears  to  me  de- 
cidedly— first,  that  Enoch  W.  Green  and  his  brother  Philip- 
were  not  in  fact  in  partnership,  and  that  Enoch  did  nothing 
which  induced  the  plaintiff  to  give  credit  to  this  paper  which- 
was  issued  in  its  name. 

But  suppose  we  are  wrong  u|>on  this  jK)int,  and  that  It  was 
not  permissible  for  the  jury  to  draw  such  inferences  from  the 
evidence.  The  next  inquiry  is,  when  did  this  partnership 
commence,  and  when  did  it  end?  If  it  commenced  at  all,  it 
must  have  been  in  1843,  when  Enoch  gave  his  signature  to 
the  Trenton  Bank.  When  had  the  jury  a  legal  right  to  infer 
that  it  ended?  Mr.  Cooj>er,  the  main  witness  of  the  plain- 
tiff sayg,  the  store  at  Greensburgh  was  closed  up  in  the  latter 
part  of  1849,  but  the  account  is  carried  to  1853,  because  the 
old  debts  were  paid  after  the  store  was  closed.  Mr.  Vannoy 
says  he  wan  in  the  employ  of  Green,  Brother  &  Cooper,  and 
in  1849  went  up  to  Greensbiirgh,  and  packed  up  the  goods 
in  the  store  in  two  small  boxes,  and  sent  them  to  Philadelphia. 

In  the  two  boxes  were  about  $50  to  $75  worth  of  goods,. 


JUNE  TERM,  1863.  ..    321 

Farmers  and  Mechanics  Bank  v.  Green. 

•iiaving  first  sold  about  $70  out  of  the  store  to  the  neighbors. 
Then  a  man  by  the  name  of  Hill  carried  on  business  there 
for  his  own  account.  Philip  said  the  whole  of  the  goods  be- 
longed to  him.  There  was  sold  and  unsold  only  about  $150 
in  rum  and  tobacco,  &c.,  and  every  dollar  of  this  was  taken 
by  Philip,  as  well  as  such  property  as  there  was,  and  the 
store  closed  up.  I  think  the  jury  was  not  only  justified,  but 
forced  by  the  evidence  to  conclude,  that  if  any  such  firm  as 
Enoch  W.  Green  &  Co.  ever  existed,  it  was  finally  closed  by 
Philip's  taking  all  the  goods  under  a  claim  of  right,  and 
closing  the  store  in  1849.  The  evidence  shows  most  con- 
clusively that  Enoch  never  afterwards  interfered  in  any  way 
in  the  matter,  except  when  he  heard  of  Philip's  using  his 
name  to  notes  in  Philadelphia,  to  forbid  it,  and  to  try  to 
persuade  Philip  to  take  the  sign  down.  The  sign  he  did  get 
down  in  1 857,  but  Philip,  against  the  protestations  of  Enoch, 
secretly  used  his  name  to  notes  in  New  York  and  Philadelphia 
for  his  own  private  purposes  until  he  died,  in  1860,  and  the 
fraud  was  exposed. 

Now  when  did  the  plain  tiff  first  commence  to  deal  with 
this  alleged  firm,  E.  W.  Green  &  Co.  ?  The  evidence  of  Mr. 
-Cooper  is,  that  the  bank  had  been  in  the  habit  of  discounting 
similar  papers  for  the  large  concern  of  Green,  Brother  & 
Oooper,  in  Philadelphia,  from  eight  to  twelve  years — taking 
.the  longest  time  named,  twelve  years.  This  would  make 
the  commencement  in  1850,  which  was  a  year  after  the  dis- 
solution, and  while  the  store  at  Greensburgh  was  entirely 
closed,  or  Hill  doing  business  there  for  himself.  But  Van- 
noy  says,  and  the  jury  had  a  right  to  believe  him,  that  he 
was  in  the  employ  of  Green,  Brother  &  Cooper  from  1849  to 
1852,  and  that  no  paper  signed  E.  W.  Green  &  Co.  was  dis- 
counted at  the  plaintiif's  bank.  So  that  the  jury  was  justi- 
fied in  concluding  that  the  plaintiff'  did  not  discount  any  of 
this  paper  signed  E.  W.  Green  &  Co.  until  1852.  Now  how 
stand  the  facts?  E.  W.  Green,  if  he  ever  was  in  it,  retired 
from  the  firm  in  1849;  the  plaintiff,  who  never  dealt  with 
the  firm  during  its  actual  existence,  three  years  after  its  dis- 


322          NEW  JERSEY  SUPREME  COURT. 

Farmers  and  Mechanics  Bank  v.  Green. 

solution,  discount,  in  Philadelphia,  for  Green,  Brother  & 
Cooper,  paj>er  which  had  been  fraudulently  made  by  Philip 
Green,  signed  in  the  name  of  E.  W.  Green  &  Co.,  and 
continue  to  do  so  until  it  discounted  the  note  in  question, 
in  June,  1860,  eleven  years  after  the  dissolution,  and  that 
without  inquiry.  Under  such  circumstances,  the  defendant 
is  not  liable.  The  plaintiff  taing  a  new  customer  of  the  firm, 
ought  not  to  have  taken  for  granted  the  existence  of  the  firm. 
The  inquiry  should  have  been,  not  if  any  such  firm  had 
ever  existed,  but  whether  it  was  at  the  first  credit  an  exist- 
ing thing.  Otherwise  how  is  a  retiring  partner  ever  to  be 
protected  against  the  fraudulent  acts  of  his  copartners?  This 
case  itself  is  a  go<xl  illustration  of  its  effects.  Here,  for 
eleven  years  after  the  smallest  kind  of  a  country  apology  for 
a  store  had  been  closed  up,  every  particle  of  goods  taken  to 
Philadelphia  by  the  partner,  then  that  partner  fraudulently, 
without  the  knowledge  or  consent  of  the  retiring  partner,, 
manufactures  paper  with  his  name,  to  the  amount  of  thou- 
sands of  dollars,  to  be  shaved  in  New  York  and  Philadelphia, 
or  any  distant  point  from  the  place  where  the  apology  for 
a  store  was  pretended  to  be  kept. 

When  a  partner  retires  there  is  sense  and  safety  in  re- 
quiring him  to  notify  the  old  customers,  for  he  is  presumed 
to  know  who  they  are.  But  how  is  he  to  know  or  notify  new 
customers?  How  is  he  to  notify  all  who,  in  every  place, 
however  distant,  and  at  anv  future  distance  of  time,  may  see 
fit  to  take  without  inquiry  the  fraudulent  paper  made  by 
other  members  of  the  firm?  Foi  what  we  know  to  the  con- 
trary, this  bank  uune  into  existence  after  the  dissolution, 
and  notice  consequently  impossible. 

It  is  true  a  retiring  partner  may  so  act  as  to  cause  the  new 
customer  to  be  misled  and  to  give  credit;  but  then  he  be- 
come* responsible  by  such  acts,  if  they  actually  induced  the 
credit.  Tin-re  in  no  pretence  of  any  such  act  here.  The  bank 
did  inn  know  E.  W.  Green. 

The  PMJMT  wan  in  fart  discounted  on  the  credit  of  the  firm 
in  Philadelphia.  The  bank  was  not  induced  to  discount  the 


JUNE  TERM,  1863.  323 

Grant  &  Kelly  v.  Chambers. 

paper  by  an}7  act  of  Enoch  W.  Green,  or  at  least  the  jury  were 
justified  in  concluding,  from  the  evidence,  that  it  was  not. 
The  only  fact  that  could  ever  so  little  look  that  way  was,  that 
the  sign  of  E.  W.  Green  &  Co.  remained  until  1857.  But 
this  was  three  years  before  this  note  was  discounted ;  and 
even  if  it  had  not  been  down  at  all,  there  is  no  evidence  that 
the  plaintiff  knew  or  had  ever  heard  it  was  up,  and  therefore 
could  not  have  given  the  credit  on  that  account ;  or,  if  known, 
would  it  have  justified  a  bank  in  Philadelphia  in  dealing  with 
E.  W.  Green  &  Co.,  as  a  firm,  upon  the  bare  information  that 
an  old  sign  had  once  been  up,  upon  a  small  shanty  in  the 
country  ? 

I  think  the  jury  were  not  only  justified  in  concluding,  but 
were  bound  by  the  evidence  to  conclude,  that  when  this  paper 
was  given,  there  was  in  fact  no  such  partnership  as  that  of  E. 
W.  Green  &  Co.,  and  that  the  defendant  had  done  nothing 
which  justified  the  plaintiff  in  either  trusting  or  holding  him 
as  a  partner,  and  that  the  rule  should  be  discharged. 

Rule  discharged. 


GKANT  &  KELLY  v.  KOBEKT  AND  ABNEE  K.  CHAMBEES. 

A  suit  was  brought  by  the  plaintiffs  against  the  defendants  on  a  note  pur- 
porting to  be  for  $1500.  The  defence  set  up  was  forgery ;  the  parties 
compromised  the  suit  by  the  defendants  giving  the  plaintiffs  a  new 
note  for  $1000,  and  upon  suit  brought  on  the  last  note — held,  that  the 
compromise  was  a  good  consideration  for  the  new  note,  and  that  the 
defendants  could  not  set  up  as  a  defence  that  the  first  note  was  a 
forgery. 

On  rule  to  show  cause  why  verdict  for  the  plaintiffs,  ren- 
dered in  the  Mercer  Circuit,  should  not  be  set  aside. 

For  the  plaintiffs,  A.  Dutcher. 

For  the  defendants,  F.  Kingman  and  J.  P.  Stockton. 


-I          NEW  JERSEY  SUPREME  COURT. 

Grant  &  Kelly  v.  Chambers. 

VREDENBURGU,  J.  This  was  a  suit  brought  on  a  promis- 
sory note,  given  by  Robert  Chambers,  to  the  order  of  Abner 
R.  Chambers,  for  $1000,  dated  September  23d,  1861,  at  sixty 
days,  without  defalcation  or  discount,  payable  at  the  Trenton 
Rink,  and  endorsed  to  the  plaintiffs  by  Abner  R.  Chambers. 

The  plaintiffs,  having  proved  the  note  and  notice  of  pro- 
test, rested. 

The  defendants  then  offered  to  prove  that  a  former  suit  had 
been  brought  by  the  plaintiffs  against  Robert  Chambers,  on  a 
note  for  $1500,  alleged  by  Chaml>ers  to  have  been  altered 
from  a  $100  to  a  $1500  note,  and  consequently  a  forgery,  and 
that  the  consideration  of  the  $1000  note  now  in  controversy, 
was  founded  upon  the  compromise  of  the  former  suit  upon 
the  said  $1500  note,  which  offer  the  court  overruled,  and  a 
verdict  was  taken  for  the  plaintiffs;  and  the  question  with  us 
now  is,  whether  the  $1000  note  was  given  without  sufficient 
legal  consideration. 

It  is  contended  that  the  only  consideration  of  the  $1000 
note  was  a  worthless  piece  of  forged  paper,  a  note  altered 
from  a  $100  to  a  $1500  note,  and  that  consequently  the 
$1000  note  is  void  as  between  these  parties. 

It  is  true,  a*  contended  by  the  defendants,  that  if  the  only 
consideration  of  the  $1000  note  was  a  forged  piece  of  paper, 
that  the  defence  might  be  a  good  one ;  but  such  is  not  the 
true  consideration  of  the  $1000  note. 

A  suit  is  brought  by  the  endorsee  against  the  drawer  and 
endorser  of  the  $1500  note.  The  defence  is,  that  the  draw- 
er's name  i.s  forged  :  the  parties  get  together 'to  talk  the 
matter  over;  the  plaintiffs  say  the  note  is  genuine;  the 
drawer  and  endorser  say  it  is  a  forgery.  Finally,  the  de- 
fendant* say  to  the  plaintiff-*,  if  you  will  withdraw  this  suit, 
I  will  give  you  a  new  note  for  $1000  by  way  of  compromise. 
The  plaintiff*  say  they  will  take  it;  and  the  compromise  is 
consummated  by  the  plaintiffs  withdrawing  the  old  suit,  and 
the  defendant*  giving  the  ii.-w  note  for  $1000.  Now,  if 
when  tin-  $1000  note  was  given  it  was  admitted  by  both  sides 
that  the  $1500  note  was  a  forgery,  then  the  defendant's  posi- 


JUNE  TERM,  1863.  325 

Grant  &  Kelly  v.  Chambers. 

tion  might  be  good.  But  then  this  would  be  no  compromise; 
it  would  be  merely  an  agreement  of  the  defendants  to  give 
the  plaintiffs  a  note  for  $1000  for  nothing. 

But  the  difficulty  is,  that  upon  a  compromise  the  reverse 
is  true.  This  arrangement  is  made  upon  an  allegation,  on 
one  side,  that  the  $1500  note  is  a  forgery,  and  on  the 
other  side,  that  it  is  genuine.  The  consideration  of  the  new 
note,  so  far  as  the  plaintiffs  are  concerned,  is  the  getting  a 
new  note  of  $1000  in  the  place  of  a  $1500  note,  which,  on 
trial,  may  perhaps  turn  out  to  be  a  forgery.  To  get  clear  of 
those  chances,  he  is  willing  to  lose  $500  on  his  claim.  The 
consideration,  so  far  as  regards  the  defendants,  is  getting 
clear  of  the  chances  of  a  verdict  against  him  for  the  whole 
$1500,  and  to  effect  that,  he  is  willing  to  pay  $1000.  So 
that  the  forged  paper  is  in  no  sense  the  consideration  of  the 
new  note.  How,  in  the  nature  of  things,  can  the  forged 
paper  be  the  consideration  of  the  new  note,  when  at  the  very 
instant  the  defendants  gave  the  new  note  to  the  plaintiffs  the 
plaintiffs  are  averring  that  the  old  note  is  genuine?  The 
consideration  is  a  part  of  the  contract,  and  can  only  be  some- 
thing that  both  parties  agree  upon  to  be  the  consideration. 
In  order  to  make  the  forged  paper  the  consideration  of  the 
new  note,  both  parties  must  agree  that  the  old  note  is  a  for- 
gery, and  give  the  new  note  under  such  an  agreement.  But 
the  very  nature  of  a  compromise  supposes,  not  that  both  par- 
ties agreed  that  the  old  note  was  a  forgery,  but  that  that  pre- 
cise thing  was  the  very  thing  they  were  disputing  about,  and 
could  not  agree  upon ;  and  so  the  parties  not  being  able  to 
agree  upon  the  question  whether  the  old  note  was  a  forgery 
or  not,  each  party  agreed  to  give  and  receive  a  new  note  for 
a  lesser  amount;  the  one  to  avoid  the  risk  of  losing  all,  and 
the  other  the  risk  of  paying  all.  The  compromise  itself  was 
the  consideration,  as  agreed  to  by  both  parties  to  the  new 
note,  and  it  is  a  matter  of  entire  indifference  whether  the  old 
note  was  genuine  or  a  forgery. 

This  is  not  the  case  when  there  was  an  indictment  for  for- 
gery, and  the  new  note  given  upon  an  agreement  not  to 


320          NEW  JERSEY  SUPREME  COURT. 

Green  v.  Howell. 

prosecute.  There  was  no  such  agreement  here.  If  this  new  note 
be  void  from  want  of  a  consideration,  the  parties  could  never 
oorapromi.se  when  there  was  an  allegation  that  paper  is  forged. 
The  rule  should  be  discharged. 

OGDEX  and  BROWN,  Justices,  concurred. 


CHARLES  J.  GREEN,  ADMINISTRATOR  OF  DEBORAH  GREEN, 
DECEASED,  v.  SAMUEL  HOWELL,  EXECUTOR  OF  DAVID 
HOWELL,  DECEASED. 

A  construction  put  U|MHI  a  will  having  the  following  clause:  "I  give  and 
bequeath  unto  my  sister,  M.  G.,  wife  of  J.  B.  G.,  the  interest  of  $1000, 
the  principal  to  be  put  out  at  use  on  safe  security,  and  the  interest 
thereof  to  be  annually  paid  to  her,  for  her  own  private  use,  during  her 
natural  life;  and  after  her  decease,  I  give  and  bequeath  the  said  $1000 
to  her  two  daughters,  viz.  Deborah  and  Sarah,  equally  to  be  divided." 


Action  on  the  case  to  recover  a  legacy. 

David  Howcll,  deceased,  by  his  will,  gave  to  his  sister, 
Martha  Green,  wife  of  James  B.  Green,  the  interest  of  $1000, 
the  amount  to  be  put  out  on  safe  security,  and  the  interest 
thereof  to  be  annually  paid  to  her,  for  her  own  private  use, 
during  her  natural  life;  and  after  her  decease,  he  gave  the 
said  $1000  to  her  two  daughters,  Deborah  and  Sarah,  equally 
to  be  divided.  Sarah,  one  of  the  daughters,  died  in  the  life- 
time of  the  testator;  Deborah  survived  the  testator,  but  died 
before  her  mother,  Mary  Green.  After  the  death  of  Mary 
Gn-en,  the  plaintiff  administered  upon  the  estate  of  Delmrah, 
and  then  brought  this  suit  to  recover  a  moiety  of  the  $1000, 
on  the  ground  that  the  same  l>ccanie  vested  in  his  intestate, 
immediately  on  the  death  of  the  testator,  and  in  the  lifetime 
of  her  mother.  The  residuum  of  the  estate  was  given  by  the 
will  to  the  defendant,  testator's  brother. 

To  a  declaration,  setting  out  in  sut«tance  the  foregoing 
fwt»,  and  to  which  wa*  annexed  a  copy  of  the  will  of  David 
Howell,  deceased,  the  defendant  demurred. 


JUNE  TERM,  1863.  327 

Green  v.  Howell. 

The  demurrer  was  argued  by  P.  D.  Vroom,  for  the  demur- 
rant,  and  M.  Eeasley,  for  the  plaintiff. 

The  opinion  of  the  court  was  delivered  by 

VKEDENBURGH,  J.  This  suit  is  brought  to  get  a  construc- 
tion of  the  will  of  David  Howell,  deceased.  The  difficulty 
arises  under  its  third  clause,  which  reads  as.  follows :  "3.  I 
give  and  bequeath  unto  my  sister,  Martha  Green,  wife  of 
Joseph  B.  Green,  the  interest  of  one  thousand  dollars,  the 
principal  to  be  put  out  at  use  on  safe  security,  and  the  interest 
thereof  to  be  annually  paid  to  and  for  her  own  private  use 
during  her  natural  life;  and  after  her  decease,  I  give  and  be- 
queath the  said  one  thousand  dollars  to  her  two  daughters,  viz. 
Deborah  and  Sarah,  equally  to  be  divided."  The  residue  of 
the  estate  is  given  by  the  will  to  the  defendant,  who  is  also 
executor.  This  will  is  dated  the  23d  August,  1836,  and  the 
testator  died  shortly  after. 

Sarah,  one  of  the  daughters  of  Martha  Green,  died  in  the 
lifetime  of  the  testator ;  Deborah,  the  other  daughter,  after  the 
testator,  but  before  her  mother,  Martha ;  and  this  suit  is 
brought  by  her  administrator  to  recover  the  one  half  of  the 
said  $1000  legacy  named  in  said  third  clause  of  the  will. 

The  question  is  when  the  $1000  legacy  vested  in  Deborah, 
whether  at  the  death  of  the  testator  or  at  the  death  of  the 
mother.  It  is  settled,  by  a  long  course  of  decisions  both  in 
England  and  in  this  country,  that  under  the  precise  language 
of  this  will,  the  one  half  of  this  legacy  vested  in  Deborah  at 
the  death  of  the  testator.  The  principle  laid  down  in  1 
Roper  on  Legacies,  marginal  page  586,  viz.  "  when  the  ab- 
solute property  in  a  fund  is  bequeathed  in  fractional  inter- 
ests in  succession,  at  periods  which  must  arrive,  the  interest 
of  the  first  and  subsequent  takers  will  vest  together,"  is  not 
only  supported  by  the  authorities  digested  there,  but  by  nu- 
merous other  cases  decided  in  the  English  courts,  and  also 
by  many  decisions  in  this  country.  They  are  so  numerous 
that  it  would  be  mere  affectation  to  review  them. 

The  cases  to  which  we  were  referred  on  the  argument  are 


328          NEW  JERSEY  SUPREME  COURT. 

Green  v.  Howell. 

precise  and  to  the  point.  I  have  examined  all  the  cases  to 
which  we  were  referred  by  the  defendant;  but  so  far  as  I  can 
understand  them,  they  turn  upon  quite  a  different  principle, 
viz.  that  besides  the  words  in  this  will,  there  are  some  other 
•words  superadded,  or  some  variety  in  the  language,  which 
requires  some  uncertain  event  to  happen  before  the  legatee  is 
to  enter  into  the  enjoyment  thereof,  as,  for  instance,  if  the 
words  "after  her  death,  I  give  the  $1000  to  her  two  daugh- 
ters," the  will  here  added,  "  if  they  survive  their  mother,"  or 
"  if  they  arrive  at  twenty-one  years  of  age.''  In  all  the  cases 
cited  on  the  defence  the  question  has  been,  whether  the  words 
of  the  will  did  or  did  not  imply  some  such  contingency.  In 
such  cases  the  legacy  clearly  would  not  vest,  because  until  the 
uncertain  event  happened,  it  never  could  be  known  whether  it 
would  or  would  not  happen,  and  consequently  whether  the 
]>erson  named  ever  would  or  would  not  be  entitled  to  enjoy,  or 
answer  to  the  description  of  the  person  named  in  the  will.  But 
the  death  of  the  mother  was  certain  to  ha|>|>en  sooner  or  later, 
and  there  never  could  be  any  doubt,  that  the  event  upon  which 
the  daughters  would  take  would  certainly  come  to  pass. 

The  language  of  the  will  is  equivalent  to  saying,  I  give  this 
$1000  to  my  sister  and  her  two  children ;  she  to  have  it  during 
her  life,  and  they  to  have  it  after  her  death.  The  repetition 
of  the  words,  "  I  give  and  l>equeatli,"  does  not  alter  either  the 
legal  or  common  sense  meaning  of  the  terms  used.  It  is  a 
present  gift  of  the  whole  interest  in  the  fund.  The  cases  cited 
by  the  defence  give  part  of  the  interest  absolutely ;  but  whether 
the  rest  is  given  or  not,  is  made  to  de|>end  upon  an  event  which 
may  never  happen.  These  distinctions  run  through  all  the  cases. 

The  demurrer  should  be  overruled,  and  judgment  entered 
for  the  plaintiffs. 

N  ami  BROWN,  Justices,  concurred. 


A?r m MKI>.  '2  Vroom  670. 

CITKD  in  Thornton  v.  liakertt,  3  Stew.  476;  IltaUyt  Adm'r  v.  Montgomery/ 1 
Kztr*t,u.  >}  ('.  /;.  Or.  326. 


JUNE  TEEM,  1863. 


Thompson  v.  Conover. 


JOSEPH  I.  THOMPSON  AND  JOHN  PETTY  v.  JOHN  N.  CON- 

OVEK. 

Conover  agreed  to  sell  Cornelius  Petty  all  the  corn  he  had  to  sell,  sup- 
posed to  be  in  all  about  600  bushels,  the  white  at  65  cents,  and  the 
yellow  at  63  cents  per  bushel.  C.  delivered  the  white,  and  offered  to- 
deliver  the  yellow,  which  Petty  refused  to  receive :  held,  that  the  con- 
tract was  an  entirety,  and  the  refusal  of  plaintiff  to  receive  the  yellow 
was  a  repudiation  of  the  contract,  and  that  C.  could  recover  the  value 
of  the  white  in  trover,  and  that  he  could  do  so  even  if,  before  demand 
and  refusal,  Petty  had  so  mixed  the  whole  corn  as  that  it  could  not 
be  identified.  It  was  not  error  in  the  court  charging  the  jury  that  C. 
could  recover,  even  if  the  corn  had  been  ground  before  demand  and 
refusal. 


Error  to  the  Circuit  Court  of  the  county  of  Monmouth. 
For  the  plaintiff  in  error,  J.  D.  Bedle. 
For  the  defendant,  M.  Beasley. 

The  opinion  of  the  court  was  delivered  by 

VREDENBURGH,  J.  This  was  an  action,  brought  in  the 
court  below,  by  Conover  against  the  defendants,  to  recover 
272  bushels  of  white  corn ;  and  the  question  was  whether  it 
was  the  plaintiff's  property  on  the  16th  of  March,  1861.  The 
facts  were  as  follows :  the  plaintiff,  being  a  farmer,  and  Corne- 
lius Petty,  a  miller,  met  on  the  first  of  March,  1861.  Con- 
over  asked  Petty  if  he  was  buying  corn.  Petty  replied  he 
was,  every  day,  and  asked  if  he  (Conover)  had  some  for  sale. 
Conover  replied  that  he  had  about  600  bushels.  Petty  in- 
quired what  he  asked  for  it.  Conover  replied,  sixty-five  cents 
a  bushel.  Petty  asked  if  it  was  white  or  yellow.  Conover 
replied,  nearly  half  and  half.  Petty  said  he  would  give  65 
cents  for  the  white,  but  not  for  the  yellow,  and  then  said  he 
would  give  62J  for  the  yellow.  Conover  replied,  make  it 
sixty-three  cents,  and  you  shall  have  it.  It  was  then  agreed 
between  the  parties  that  Petty  should  give  Conover  65  cents 
per  bushel  for  the  white,  and  sixty-three  for  the  yellow,  for 
all  the  corn  Conover  had  to  sell,  supposed  to  be  in  all  about 


330          NEW  JERSEY  SUPREME  COURT. 


Thompson  v.  Conover. 


600  bushels.  Petty  then  asked  Conover  when  he  would  like 
to  deliver  it.  Conover  told  him  about  the  middle  of  March, 
and  said  he  would  call  again,  and  set;  when  he  (Petty)  would 
have  it,  Cjnover  then  said,  how  about  the  payment  of  the 
money  ?  Petty  said,  when  would  you  like  to  have  it?  Conover 
said,  on  the  25th  of  March.  Petty  said,  I  can  pay  you  all 
your  money  as  soon  as  you  get  it  delivered;  all  of  it,  just  as 
lief  do  it  as  not.  Conover  replied  he  would  like  to  have  it 
so.  Conover  called  again  on  Petty,  about  two  weeks  after 
this  bargain,  and  asked  him  if  he  was  ready  for  the  corn,  and 
which  he  would  have  first,  the  white  or  the  yellow?  He  said, 
the  white.  In  pursuance  of  which  Conover  did  deliver  the 
white  corn,  on  Friday,  the  15th  day  of  March,  viz.  272 
bushels,  at  the  mill.  On  Monday,  the  18th  March,  Conover 
sent  two  loads  of  the  yellow  to  the  mill,  viz.  68  bushels,  which 
were  sent  back  by  Cornelius  Petty,  saying  that  they  did  not 
receive  any  more  corn.  On  Friday,  the  day  the  white  corn 
was  delivered,  Cornelius  Petty  had  confessed  judgment  to  his 
brother,  John  Petty,  for  a  large  amount,  and  the  white  corn 
delivered  to  Cornelius  Petty  on  Friday  was  seized  on  Satur- 
day under  the  fi.  fa.  on  his  brother's  judgment,  and  seized 
under  his  orders  by  the  sheriff,  whereupon  Conover  brought 
this  action  against  the  sheriff  and  the  plaintiff  in  execution  to 
recover  the  value  of  the  white  corn  delivered  as  aforesaid. 

The  only  question  raided  by  this  case  is,  whether  this  con- 
tract was  an  entirety.  If  it  was,  then  when  Cornelius  Petty 
refused  to  take  the  yellow  corn,  he  himself  repudiated  the 
contra**,  and  the  white  corn  belonged,  as  before,  to  Conover; 
and  as  the  defendants  seized  this  white  corn,  or  corn  with 
which  it  had  been  so  mixed  by  Cornelius  Petty  as  that  it  could 
not  IK?  identified  again,  tin*  defendants  are  resjwnsible. 

Th«-  question  of  entirety  is  one  of  intent  of  the  parties  to 
l>c  gathered  from  its  terms. 

\V:«H  thi*  one  contract,  or  was  it  two?  The  defendants 
contend  that  there  were  two  contracts,  one  to  sell  and  deliver 
the  wliit»-  mm,  and  another  the  yellow.  But  the  bargain  of 
Conover  with  Petty  was  to  Hell  all  his  corn  that  he  had  to 


JUNE  TERM,  1863.  .       331 

Kirkpatrick  v.  Cason. 

sell,  supposed  to  be  about  600  bushels,  and  to  be  paid  for 
when  all  was  delivered,  and  not  before.  What  was  said  about 
the  corn,  as  white  or  yellow,  was  only  to  regulate  the  price, 
and  to  prevent  any  question  as  to  the  fairness  of  the  propor- 
tions. If  they  had  agreed  to  sell  all  the  corn,  both  white  and 
yellow,  and  nothing  further  said,  it  would  have  been  the  in- 
terest of  Conover  to  smuggle  in  as  much  yellow  corn  as  pos- 
sible. To  prevent  any  such  questions,  they  agreed  that  as 
much  of  the  whole  amount  of  the  corn  as  was  white,  should 
be  paid  for  at  65  cents,  and  as  much  of  the  whole  amount  sold 
as  was  yellow,  should  be  paid  for  at  the  rate  of  63  cents.  It 
manifestly  was  not  the  intention  of  the  parties,  if  white  corn 
should  rise,  and  yellow  corn  fall,  that  Mr.  Petty  could  take 
the  white  and  reject  the  yellow.  The  object  of  Mr.  Conover 
was  to  sell  his  whole  crop,  and  of  Mr.  Petty  to  buy  it. 

There  was  no  error  in  the  court  instructing  the  jury,  that 
whether  the  corn  was  ground  up  or  not  made  no  difference, 
for  two  reasons :  first,  because  the  evidence  shows  that  if  this 
identical  corn  had  been  ground,  there  was  enough  left  in  the 
bin  with  which  it  had  been  mixed  to  answer  for  the  272 
bushels;  and  in  the  second  place,  because  if  not  there  as  corn, 
it  was  as  meal,  and  the  plaintiff  could  amend  if  necessary ; 
because  if  the  one  reason  assigned  by  the  court  was  not  good, 
the  other  undoubtedly  was. 

I  think  the  judgment  below  should  be  affirmed. 

BEOWN  and  OGDEN,  Justices,  concurred 

Judgment  affirmed. 


JOSEPH  KIKKPATKICK  v.  WILLIAM  E.  CASON. 

Where  money  raised  by  execution  was  brought  into  court  for  distribu- 
tion, and  claim  made  to  it  not  only  by  the  execution  creditor,  but  by 
a  landlord  for  the  payment  of  rent,  and  also  by  attaching  creditors,  it 
was  held — 

1.   That  to  authorize  payment  to  the  landlord,  it  must  appear  that  rent 


332  NEW  JERSEY  SUPREME  COURT. 


Kirkpatrick  v.  Cason. 


was  due  him  upon  such  a  lease  or  contract  as  would  give  him  a  right 
to  distrain. 

2.  That  where  a  jury,  from  the  circumstances,  would  be  authorized  in 
finding  that  the  landlord  had  relinquished  his  right  of  distress,  the 
court  is  justified  in  denying  his  claim  to  any  part  of  the  money. 

8.  That  where  the  property  levied  on  was  of  less  value  than  $200,  and  no 
inventory  or  appraisement  was  made  by  the  sheriff,  as  directed  by  law, 
but  the  property  was  su tiered  to  remain  in  the  hands  of  the  defendant, 
and  the  execution  creditor  himself  stayed  all  further  proceedings  on 
the  execution,  the  goods  were,  by  consent  of  the  plaintiff,  in  defend- 
ant's possession  for  his  use  and  that  of  his  family,  and  not  as  agent  or 
bailiff  of  the  sheriff,  and  the  sheriff  had  no  further  lien  on  them,  and 
could  not  lawfully  sell  them  under  the  execution. 

Certiorari  to  the  Circuit  Court  of  the  county  of  Hudson. 
Argued  before  HAINES  and  ELMER,  Justices. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  This  cerliorari  brings  up  an  order  directing 
money,  made  by  the  sheriff  upon  an  execution  at  the  suit  of 
the  plaintiff  against  the  defendant,  and  paid  into  court,  to  be 
j»id  over  to  certain  attaching  creditors.  The  money  was 
claimed  by  the  plaintiff;  by  the  landlord  for  rent ;  and  by 
the  plaintiffs  in  certain  attachments  issued  by  a  justice  of  the 
peace. 

No  case  agreed  upon  by  the  parties,  or  stated  by  the  court, 
is  before  us,  nor  have  we  any  means  of  ascertaining  precisely 
what  questions  of  law  were  decided,  but  we  are  left  to  gather 
the  facts  as  best  we  may,  from  loose  ex  parte  affidavits  not  en- 
titled to  be  read  on  the  hearing  in  the  court  below  or  here,  ex- 
cept by  consent.  Under  these  circumstances,  every  presump- 
tion as  t»  I  lie  facts  must  IMJ  in  favor  of  the  correctness  of  the 
decision  Nought  to  be  reversed.  Although  it  is  held  that  a 
ctrtiortiri  is  a  projwr  mode  of  bringing  before  this  court  such 
an  order  at  that  in  question,  it  is  only  for  the  purpose  of  re- 
viewing the  law  involved,  and  not  to  determine  the  merits  of 
the  case  upon  the  evidence.  (\tblwcU  v.  Fifield,  4  Ziib.  152. 

It  npi>ears  that  the  plaintiff  issued  his  excution,  and  the 
levy  was  made  September  14th,  1861,  and  on  the  same  day 


JUNE  TERM,  1863.  333 

Kirkpatrick  v.  Cason. 

the  plaintiff  stayed  the  proceedings  until  further  orders.  The 
goods  and  chattels  levied  on  are  those  of  a  debtor,  having  a 
family  residing  in  the  state,  of  less  value  than  two  hundred 
dollars,  and  therefore  exempt  from  sale,  and  no  inventory  or 
appraisemsnt  of  them  was  made,  as  directed  by  the  act  of 
1851.  Nix.  Dig.  249,  §  13,  15.*  So  matters  remained  until 
the  5th  day  of  March,  1862,  on  or  before  which  day  the  de- 
fendant absconded,  and  several  attachments  were  issued 
against  him,  by  virtue  of  which  the  goods  were  seized  by  a 
constable  inside  the  ferry  gate,  and  about  to  go  into  the  city 
of  New  York.  After  they  were  so  seized,  the  agent  of  the 
landlord,  who  had  been  previously  aware  of  the  intention  to 
remove,  by  virtue  of  a  distress  warrant,  caused  them,  as  the 
affidavit  expresses  it,  to  be  "  levied  on  "  for  rent  alleged  to 
be  due.  Then  the  sheriff  asserted  his  claims,  and  as  it  would 
seem,  by  common  acquiescence,  sold  the  goods,  and  brought 
the  money  into  court,  the  landlord  giving  him  written  notice 
to  pay  him  his  rent  out  of  the  proceeds.  The  defendant 
made  a  written  waiver  of  his  right  of  exemption,  after  the 
execution  of  the  distress  warrant  in  favor  of  the  landlord, 
and  subsequently  made  a  like  waiver  in  favor  of  the  plaintiff. 
As  to  the  landlord,  there  is  no  evidence  that  rent  was  due 
him  upon  such  a  lease,  or  actual  or  implied  contract,  as  enti- 
tled him  to  distrain.  Central  Bank  v.  Peterson,  4  Zab.  668. 
A  landlord's  warrant  is  not  a  process,  but  a  mere  power  to  do 
what  the  landlord  himself  might  have  done.  The  distress 
proved  no  right,  nor  did  the  fact  that  notice  was  given  of  the 
claim  for  rent.  The  affidavits  produced  state  that  the  defend- 
ant occupied  the  landlord's  house  from  May  1st,  1858,  to 
March  5th,  1862,  and  that  the  sum  of  one  hundred  and 
eighty-one  dollars  and  twenty  cents  of  rent  was  due  from  de- 
fendant to  the  landlord  upon  the  first  day  of  March,  and  was 
due  and  unpaid  at  the  removal  of  the  goods,  but  whether  the 
sum  was  due  by  a  contract  express  or  implied,  or  whether  it 
was  more  or  less  than  a  year's  rent,  is  not  stated. 

*Reo.,p.  391,  n  10,  12. 

VOL.  i.  x 


334          NEW  JERSEY  SUPREME  COURT. 


Kirkpatrick  v.  Cason. 


But  I  think  the  facts  and  circumstances  disclosed  by  tlie 
evidence  were  such  a*  would  have  justified  a  jury,  had  the 
question  been  submitted  to  one,  in  finding  that  the  agent  re- 
linquished the  landlord's  claim  to  distrain,  and  not  only  per- 
mitted the  goods  to  be  taken  from  the  premises,  but  would 
have  allowed  them  to  have  been  taken  out  of  the  state,  had 
they  not  l>een  attached.  This  being  so,  the  court  below  had  a 
right  to  draw  the  same  conclusion,  and  we  ought  to  assume 
that  he  did,  and  was  thereby  warranted  in  excluding  the  land- 
lord's claim  a^  abandoned.  The  exemption  law  enacts,  that 
goods  and  chattels  of  the  value  of  two  hundred  dollars  shall 
be  reserved  for  the  use  of  the  family,  and  shall  not  l>e  liable 
to  be  seized  or  taken  by  virtue  of  any  execution  or  civil  pro- 
cess whatever,  and  requires  the  sheriff  or  other  officer  to  in- 
ventor)- and  appraise  the  goods;  and  if  they  exceed  in  value 
two  hundred  dollars,  the  debtor  is  to  select  such  as  he  desires 
to  have  reserved,  and  if  the  appraisement  shall  not  exceed 
two  hundred  dollars,  the  officer  is  to  suffer  the  goods  to  re- 
main in  the  possession  of  the  defendant,  for  the  use  of  him- 
self and  family.  It  appeal's  in  this  case  that  the  goods  levied 
on  did  not  amount  in  value  to  two  hundred  dollars,  and  no 
inventory  and  appraisement  was  made,  because  the  plaintiff 
him.self  stayed  all  further  proceedings  on  the  execution. 
Under  these  circumstances,  I  think  it  must  be  held  that  the 
goods  were  suffered  to  remain  in  the  defendant's  possession, 
by  consent  of  the  plaintiff,  for  the  use  of  himself  and  family, 
and  not  as  the  sheriff's  !>:iiliffor  agent.  The  special  property 
which  the  sheriff  acquire*  l»v  a  lew  was  relinquished,  so  that 
he  had  no  further  lien  <>n  Dennis.  This  being  so,  they  could 
not  be  taken  and  sold  by  him  after  his  execution  was  returned. 
The  defendant'*  waiver  of  his  right  to  an  exemption,  was  not 
made  until  long  after  it  was  returned,  and  could  not  therefore 
restore  the  lien,  which  had  been  relinquished  during  all  the 
time  it  remained  in  font-. 

As  to  the  objection,  that  the  attaching  creditors  had  not 
obtained  judgment,  it  i«  a  matter  with  which  the  other  parties 
before  the  court  have  no  COIHVI n.  If  they  had  no  right  to 


JUNE  TERM,  1863.  335 


State  v.  Elkinton. 


follow  the  goods,  they  are  not  injured,  and  cannot  interfere 
with  the  attachments.  The  order  of  the  Circuit  Court  was  in 
effect,  to  retain  the  money,  until  the  claims  of  the  attaching 
creditors  should  be  duly  ascertained,  and  was  correct. 

I  am  of  opinion  that  the  plaintiff  in  this  certiarari  has 
failed  to  show  that  the  Circuit  Court  committed  any  error  and 
that  the  order  complained  of  must  be  affirmed. 

Order  of  the  Circuit  Court  affirmed. 


THE  STATE  v.  WILLIAM  ELKINTON  AND  WILLIAM  FER- 
GUSON, JUN. 

1.  Attachments  for  not  obeying  a  mandamus  to  open  a  road  served  on 
the  overseer  after  he  went  out  of  office,  and  on  the  new  overseer,  re- 
fused. 

2.  Mandamus  to  open  a  road  ought  to  be,  in  the  first  instance,  an  alter- 
native writ,  and  not  peremptory,  and  how  obtained. 

3.  The  writ  should  be  delivered  or  shown  to  the  person  to  whom  it  is  di- 
rected. 

4.  Overseer  of  the  highway  is  bound  to  open  and  work  the  road  without 
regard  to  the  orders  of  the  town  meeting  or  the  township  committee. 


A  motion  to  quash  the  peremptory  mandamus  issued  in 
this  case,  and  a  motion  for  attachments  against  the  overseers, 
were  made  before  Justices  HAINES  and  ELMER,  and  were 
argued  by  S.  A.  Allen  and  A.  Brouming,  for  the  relators,  and 
by  A.  L.  Eakin  and  P.  I).  Vroom,  for  the  overseers. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  The  motion  before  us  is  to  make  absolute  a 
rule  to  show  cause  why  attachments  should  not  issue  against 
William  Elkinton  and  William  Ferguson,  jun.,  for  disobeying 
a  writ  of  mandamus  heretofore  issued  out  of  this  court. 

It  appears,  by  the  papers  and  depositions  now  produced 
and  read,  that  at  November  term,  1 862,  a  rule  was  obtained 
upon  proof  of  notice  and  upon  affidavits,  now  on  file,  that 
William  Elkinton,  one  of  the  overseers  of  roads  in  the  town- 


336          NEW  JERSEY  SUPREME  COURT. 


Slate  v.  Elkinton. 


ship  of  Upper  Alloways  Creek,  county  of  Salem,  show  cause 
why  a  mandamus  should  not  issue  directing  him  to  open  and 
clear  out  a  certain  road,  then  recently  laid  out,  the  damages 
payable  to  the  land  owners  having  been  paid,  in  obedience  to 
a  mandamus  obtained  for  that  purpose.  At  November  term, 
this  rule  came  on  to  be  heard,  and  it  was  shown  to  have 
been  duly  served.  Depositions,  properly  taken  on  notice, 
were  read  in  support  of  the  application.  The  overseer  did 
not  appear,  and  the  court  ordered  that  a  peremptory  writ  of 
mandamus  issue. 

The  writ,  directed  to  William  Elkinton,  one  of  the  over- 
seers of  the  roads  for  the  township  of  Upper  Alloways  Creek, 
in  the  county  of  Salem,  was  accordingly  issued  March  tenth 
last,  and  was  served  on  Elkinton,  by  delivering  him  a  copy, 
on  the  thirteenth  of  that  month.  On  the  first  of  May,  a 
copy  of  the  same  writ  was  served  on  William  Ferguson,  jun. 
The  annual  town  meeting,  it  appears,  was  held  on  the  tenth 
of  March,  when  Ferguson  was  elected  overseer  of  the  roads 
in  place  of  Elkinton.  The  latter  assigns,  as  a  reason  why  he 
did  not  obey  the  direction  of  the  writ,  that  he  went  out  of 
office  before  it  was  served  on  him.  Ferguson  assigns,  as  his 
reason,  that  it  was  not  directed  to  him ;  and  it  appears  that 
the  town  meeting  and  the  town  committee  had  directed  that 
the  road  should  not  be  opened. 

On  behalf  of  the  defendants,  it  is  now  insisted  that  the 
attachments  ought  not  to  be  issued,  but  that  the  writ  itself 
ought  to  be  quashed,  on  the  ground  that  it  was  irregular  to 
issue  a  peremptory  mtindamus  before  an  alternative  writ  had 
been  tried.  We  are,  however,  of  opinion  that  although  the 
peremptory  writ  may  have  been  inadvertently  allowed,  yet  as 
it  was  expressly  ordered  by  the  court,  and  was  a  writ  which 
the  court  had  j>ower  in  its  discretion  to  allow,  the  defendants 
ha«l  no  right,  and  cannot  IK-  j>ermitted  to  question  its  regu- 
larity after  having  an  opportunity  to  be  heard  upon  the  rule 
to  H!IOW  cause.  Had  they  disol>eyed  its  commands  without  a 
reasonable  excuse,  we  should  have  had  no  hesitation  in  hold- 
ing them  to  a  strict  account. 


JUNE  TERM,  1863.  337 

State  v,  Elkinton. 
* 

But  we  think,  as  the  case  stands,  the  attachments  must  be 
denied,  although  we  see  no  occasion  to  quash  the  writ.  Elkin- 
ton, it  appears,  was  superseded  in  his  office  on  the  day  the  writ 
was  issued.  It  is  urged  that,  by  the  12th  section  of  the  act 
incorporating  townships,  Nix.  Dig.  837,*  the  office  of  over- 
seer of  roads  does  not  expire  until  another  is  legally  chosen 
and  qualified  in  his  stead;  and  that  in  this  case  the  successor 
had  at  least  five  days,  that  is,  until  the  time  expired  for  putting 
up  notices  of  the  election  pursuant  to  the  17th  section  of  the 
aforesaid  act,  to  determine  whether  he  would  accept.  What- 
ever may  be  the  strict  construction  of  this  provision  in  the 
case  of  an  overseer,  who  is  not  required  to  be  sworn  or  to  give 
bond,  it  appears  that  Ferguson  did  accept  the  office,  and  we 
think  Elkinton  could  not  after  that  be  required  to  open  the 
road,  and  is  not  liable  to  punishment  for  declining  to  act  in 
the  matter.  As  to  Ferguson,  the  writ  was  not  directed  to 
him,  but  expressly,  by  name,  to  his  predecessor,  and  there 
were  no  general  words  which  made  it  applicable  to  him.  And 
besides,  this  writ  is  not  proved  to  have  been  shown  to  either 
of  these  defendants.  An  alternative  mandamm  should  be  de- 
livered to  the  person  who  is  required  to  obey  it,  or  to  return 
a  sufficient  cause  for  not  doing  so;  the. person  serving  it  of 
course  preserving  a  copy,  so  that,  if  needful,  he  may  prove 
the  service.  In  the  case  of  a  peremptory  writ,  or  any  other 
writ  directed  to  an  individual  or  to  a  corporation,  and  not  to 
a  sheriff  or  coroner,  the  proper  course  is  to  show  the  original 
to  the  person  required  to  execute  it;  reading  or  explaining  it, 
if  necessary,  and  giving  him  a  copy. 

Having  taken  this  occasion  to  examine  our  statute,  Nix. 
Dig.  454,f  and  the  approved  practice  in  England  and  this 
country,  we  are  satisfied  that  when  a  writ  of  mandamus  is 
applied  for,  it  should  be  after  service  of  a  notice  or  of  a  rule 
to  show  cause,  and  the  production  of  full  affidavits  setting 
forth  all  the  facts  necessary  to  show  that  such  a  writ  is 
proper.  If  then  the  court  is  satisfied  to  allow  the  writ,  in 
all  ordinary  cases  it  should  be  in  the  alternative  to  do  the 

*Kev.,  p.  1195,  \  12.    f  Rev.,  p.  630. 


338          NEW  JERSEY  SUPREME  COURT. 

State  r.  Elkinton. 

thing  required,  or  show  cause  why  it  is  not  done.  In  extra- 
ordinary wise*,  the  writ  may  be  peremptory  in  the  first 
instance,  as  where  a  mandamus  was  allowed  commanding  a- 

o 

jailer  to  deliver  the  body  of  a  deceased  debtor  to  his  exec- 
utors. Tupp.  on  Marul.  407.  In  New  York  peremptory 
writs  of  mandamus  were  allowed,  where  the  cases  were  fully 
argued  on  the  rule  to  show  cause,  and  there  were  do  dis- 
puted facts,  but  l)oth  parties  desired  a  decision  upon  the  law. 
Ex  parte  Jennings,  6  M'cnd.  518;  Ex  parte  Rogers,  7  Wend, 
526.  It  was  probably  from  a  misapprehension  or  imperfect 
statement  of  these  cases  that  the  practice,  said  to  have  pre- 
vailed in  this  state,  of  allowing  a  peremptory  mandamus 
originated.  It  was  held  by  this  court,  in  the  case  of  The 
State  v.  HoU'ulay,  3  Hoist.  205,  after  full  argument  and 
consideration,  that  a  mandamus  may  properly  be  issued  to 
an  overseer  of  roads,  commanding  him  to  work  and  open  a 
new  road;  but  it  was  an  alternative  writ,  and  we  think  this 
precedent  ought  to  l>e  adhered  to. 

The  whole  case  l>eing  now  before  us,  and  having  no  doubt 
of  our  jxnver  to  award  the  writ  before  allowed,  or  to  authorize 
a  new  one,  we  think  our  true  course  is  to  order  a  rule  to  l>e 
entered  refusing  the  motion  for  attachments  without  costs, 
and  directing  that  an  alternative  writ  of  mandamus  be  now 
issued,  directed,  at  the  option  of  the  relators,  to  William 
Ferguson,  jun.,  overseer,  &<•.,  by  name,  or  generally  to  the 
overseer  of  the  roads  of  the  proper  district  in  the  township 
and  county  aforesaid,  commanding  him  to  OJWD,  work,  and 
make  the  road  in  question,  to  be  particularly  described  in 
the  writ,  or  that  ho  show  cause,  at  the  next  term  of  this 
court,  why  he  hath  not  so  done. 

We  take  this  course  in  full  confidence  that  Mr.  Fergusotv 
really  desires  to  do  his  duly,  and  will  not  neglect  that  duty 
without  a  good  and  sufficient  reason.  Having  accepted  the 
office  of  overseer,  and  Ix-ing  now  lx?fore  the  court  in  his  offi- 
cial cajwidty,  he  cannot  be  permitted  to  refuse  to  serve> 
he  *lmll  Ijccorne  incapable  of  doing  so  by  some  cir- 
not  within  his  own  control.  We  cannot  antici- 


JUNE  TERM,  1863.  339 


State  v.  Elkinton. 


pate  that  he  will  fail  to  yield  obedience  to  the  law,  and  thus 
make  it  the  duty  of  the  court  to  inflict  a  punishment  ade- 
quate to  the  offence,  which  may  extend  to  actual  imprison- 
ment. 

The  laws  of  this  state  intrust  the  duty  of  laying  out  and 
vacating  roads  to  officers  specially  elected  and  sworn  for  that 
object ;  and  they  have  made  ample  provisions  for  compelling 
a  road  duly  laid  out  to  be  opened  and  worked,  not  only  by 
rendering  the  overseer  liable  to  penalties  and  to  indictment 
for  neglecting  to  do  so,  but  by  subjecting  him  to  the  direct 
action  of  this  court,  to  compel  him  to  perform  his  duty. 
Neither  the  inhabitants  of  the  township,  assembled  in  town 
meeting,  nor  the  township  committee,  have  any  power  to 
counsel  or  advise  him  in  the  matter,  or  to  shield  him  from 
punishment.  The  town  meeting  may  decide  how  much  or 
whether  any  money  shall  be  raised  for  the  roads,  and  the 
township  committee  may  apportion  the  road  money  among 
the  districts  as  they  shall  deem  advisable ;  but  the  42d  sec- 
tion of  the  road  act,  Nix.  Dig.  709,  prescribes  that  if  the 
overseer  is  not  furnished  with  money  to  open,  clear  out,  and 
work  the  roads  in  his  division,  he  shall  warn  and  call  out  the 
inhabitants  to  do  the  work ;  and  the  39th  section  prescribes, 
that  if  the  inhabitants  neglect  and  refuse,  they  shall  be  liable 
to  penalties,  which  the  overseer  is  required  to  sue  for  and 
expend  in  accomplishing  the  work. 

Motion  for  attachment  refused. 

Rule  ordered  for  alternative  mandamus. 

CITED  in  State,  ex  rel.  Kelly,  v.  Mayor  &c.,  of  Pater  son,  6  Vroom  199. 


CASES  DETERMINED 


I>*   THE 


SUPREME  COURT  OF  JUDICATURE 

OF  THE 

STATE  OF  NEW  JERSEY, 
AT  NOVEMBER  TERM,  1863. 

WILLIAM  A.  BOWNK  ADS.  TITUS  &  SCUDDER. 

1.  A  co.  *ei.  cannot  be  issued  pending  proceedings  under  the  act  to  pre- 
vent fraudulent  trusts  and  assignments. 

2.  The  plaintiff'  is  a  coni|>etent  witness  on  an  application  for  a  ca.  «a. 

3.  It  is  nut  Millirirnt  for  the  commissioner  to  decide  that  there  was  proof, 
to  his  satisfaction,  that  the  defendant  had  rights  or  credits,  moneys  or 
effect*,  either  in  his  own  possession,  or  in  the  possession  of  some  other 
persons;  in  the  words  of  the  act,  he  should  specify  by  means  of  which 
of  the  several  things  mentioned,  the  fraud  was  committed. 

4.  A  statement,  that  defendant  made  certain  representations  to  plaintiffs, 
and  that  lie  had  discovered  recently  they  were  false,  is  not  sufficient 
evidence  that  the  debt  was  fraudulently  contracted. 

6.  The  ulatemcnU  made  by  the  defendant,  when  examined  under  the 
trustee  act,  cannot  afterwards  be  sworn  to  as  evidence  of  fraud  to  pro- 
cure a  ca.  no. 


This  wjw  an  application  to  set  aside  a  ca.  «a.,  and  was 
argued  l>eforc  HA  INKS  and  ELMER,  Justices,  by  P.  D.  Vroom, 
for  defendant,  and  A.  G.  Jiiijiry  and  M.  Jteasley,  for  plaintiffs. 

ELMKH,  J.  An  execution  against  the  goods  and  lands  of 
the  defendant  having  Ix-en  returned  unsatisfied,  application 
wan  made  to  one  of  the  justices  of  this  court,  pursuant  to  the 
act  entitled,  "an  act  to  prevent  fraudulent  trusts  and  assign  - 
meats,1'  and  an  order  obtained  mjuiring  the  debtor  to  appear, 
and  make  discovery  on  <>ath  concerning  his  projwrty  and 

340 


NOVEMBER  TERM,  1863.  341 


Bowne  v.  Titus  &  Scudder. 


things  in  action  before  a  commissioner.  In  obedience  to  this 
order  he  appeared,  and  was  examined  at  great  length.  While 
these  proceedings  were  still  depending,  and  before  the  ex- 
amination of  the  debtor  had  closed,  the  affidavit  of  one  of  the 
plaintiffs  was  presented  to  another  commissioner,  and  he  made 
an  order  that  a  writ  of  capias  ad  satisfaciendum  be  issued, 
which  was  done,  and  the  defendant,  having  been  arrested, 
entered  into  an  arrangement  with  the  plaintiffs,  paid  part  of 
the  money,  and  was  discharged. 

It  is  now  moved  to  set  aside  this  writ  as  irregularly  issued. 

The  main  object,  if  indeed  it  ought  not  now  to  be  consid- 
ered the  only  legitimate  object,  of  an  execution  against  the 
body  in  all  ordinary  cases  of  debt,  is  to  compel  the  defend- 
ant to  surrender  his  property  of  every  description  for  the 
benefit  of  his  creditors.  Besides  this  remedy,  the  act  before 
quoted  authorizes,  in  certain  cases,  a  compulsory  examina- 
tion of  the  debtor  under  oath,  and  if  a  proper  case  is  made, 
:an  order  forbidding  the  payment  of  debts  due  to  him,  the 
transfer  of  any  money,  property,  or  chose  in  action,  and  the 
appointment  of  a  receiver  to  prosecute,  receive,  and  sue  for 
the  property  and  thing  in  action  of  the  debtor,  or  held  in 
trust  for  him.  This  is  only  another  mode  of  obtaining  the 
same  result,  and  in  many  cases  is  more  certain  and  direct,  and 
more  beneficial  to  the  creditor. 

It  is  true,  as  urged  for  the  plaintiffs,  that  the  statutes  do 
not  in  terms  forbid  the  use  of  both  remedies  at  the  same 
time.  But,  in  my  opinion,  the  two  proceedings  are  so  in- 
compatible, that  this  is  necessarily  implied.  In  the  case  of 
a  ca.  sa.,  the  defendant  is  to  be  arrested,  and  may  remain  in 
the  custody  of  the  sheriff,  or  may  give  a  bond  to  take  the 
benefit  of  the  insolvent  act,  and  certainly  cannot  then  be  re- 
quired to  appear  before  a  commissioner.  When  an  order  is 
obtained  for  his  examination,  it  is  his  duty  to  attend  on  the 
day  appointed  before  the  judge  or  commissioner,  and  from 
day  to  day  until  the  examination  is  closed,  and  a  refusal  to 
do  so  will  subject  him  to  punishment  for  a  contempt.  Until 
he  is  discharged,  he  is  a  party  attending  in  the  course  of  a 


342          NEW  JERSEY  SUPREME  COURT. 


Bowne  v.  Titus  &  Scudder. 


legal  proceeding  by  order  of  the  court,  and  is  privileged  from 
arrest.  I  am  clearly  of  opinion  that  a  ca.  sa.  cannot  be  issued 
by  the  plaintiff  pending  the  proceedings  under  the  trustee  act, 
and  that  this  writ  is  irregular,  and  must  for  that  reason  be 
set  aside. 

Besides  this  objection,  it  is  insisted  that  the  proof  made 
before  the  commissioner  who  made  the  order  for  the  ca.  sa  was 
not  sufficient.  He  adjudged,  as  his  order  states,  that  proof 
was  made  to  his  satisfaction  that  the  defendant  had  fraudu- 
lently contracted  the  debt,  and  also  that  he  had  property  or 
rights  in  action  which  he  fraudulently  concealed,  and  that  he 
had  rights  or  credits,  moneys  or  effects,  either  in  his  own  pos- 
session, or  in  the  possession  of  some  other  i>erson  or  persons 
to  his  use,  of  the  value  of  fifty  dollars  or  over,  which  he  un- 
lawfully and  fraudulently  refused  to  apply  in  the  payment  of 
said  judgment.  The  latter  part  of  this  order  follows  the  word* 
of  the  second  particular  of  the  second  section  of  the  act.  Nix. 
Dig.  330.*  It  is  defective  in  not  stating  by  means  of  which 
of  the  several  things  mentioned,  the  commissioner  was  satisfied 
he  had  committed  a  fraud.  An  adjudication  that  a  man  has 
done  either  this  or  that,  is  not  an  adjudication  that  he  has  done 
anything.  It  is  bad,  for  the  same  reason  that  an  indictment 
charging  several  things  in  the  alternative  in  the  exact  words 
of  the  statute,  and  a  judgment  thereon,  are  bad  for  uncertainty. 
Had  the  farts  justified  a  decision,  that  the  debtor  had  prop- 
erty and  rights,  credit*,  moneys,  and  effect*,  in  his  own  jx>s- 
session,  and  in  the  |>os,sesv-ion  of  some  other  person  or  persons 
to  his  use,  an  adjudication  in  those  words  would  have  been, 
good  :  but  if  all  these  particulars  were  not  proved,  the  order 
."hi  MI  Id  have  -|>ecified  which  \v:m. 

The  proof  exhibited  and  filed,  as  required  by  the  act,  does 
not  properly  establish  fraud  in  contracting  the  debt,  or  in 
any  of  the  other  particulars  s|>ceilied.  It  consisted  of  the 
affidavit  of  one  of  the  plaint  ill'-,  which,  by  virtue  of  the  sup- 
plement to  the  act  concerning  witnesses,  approved  in  1850, 
was  competent  evidence  for  that  purj>ose. 

•Aw.,  p.  867,  {  58. 


NOVEMBER  TERM,  1863.  343 

Bowne  v.  Titus  &  Scudder. 

That  part  of  this  affidavit  designed  to  prove  fraud  in  con- 
tracting the  debt,  sets  forth  in  detail  certain  representations 
made  to  the  said  plaintiff,  whereby  he  was  induced  to  trust 
the  defendant,  and  then  adds,  "that  he  has  discovered  re- 
cently that  the  said  statement  of  the  defendant  was  absolutely 
false,"  and  that  he  had  not  done  the  things  and  had  not  the 
money  he  represented. 

By  the  original  act  to  abolish  imprisonment  for  debt, 
passed  in  1842,  proof  of  certain  facts  was  required  to  be  made 
to  authorize  issuing  the  writ  of  capais  ad  respondendum,  and 
also  the  writ  of  capais  ad  satisfaciendum.  The  proper  con- 
struction of  this  act  came  before  this  court  soon  afterwards  in 
the  cases  of  Wire  v.  Browning,  Spencet*  364 ;  Hill  v.  Hunt,  Ib. 
477;  and  Kip  v.  Chamberlain,  Ib.  656.  It  was  there  held, 
that  although  the  proceeding  was  of  necessity  ex  parte,  the  act 
required  proof  by  legal  and  competent  evidence,  and  not  the 
mere  affidavit  of  the  party  ;  that  the  depositions  must  state 
facts,  and  not  conclusions  of  law,  as  for  instance,  what  the 
intent  of  the  debtor  was  in  disposing  of  his  property,  and 
that  the  facts  sworn  to  must  be  such  as,  standing  alone, 
would  be  left  to  a  jury  on  an  issue,  as  establishing  fraud. 

The  act  of  1846,  now  in  force,  allowed  the  parties'  own 
affidavit  upon  an  application  for  the  eapais  ad  respondendum, 
but  re-enacted  the  provisions  respecting  the  ca.  sa.  in  the  same 
words.  Subsequent  acts  have  authorized  the  court,  or  one 
of  the  judges  thereof,  in  cases  of  orders  for  the  first  named 
writ,  not  only  to  examine  in  a  summary  way  the  legality  and 
credibility  of  the  original  proof,  but  to  take  new  testimony, 
and  thereupon  to  determine  whether  the  writ  was  properly  or 
improperly  issued.  This  authority  is  not  extended  to  cases 
of  orders  for  the  ca.  sa.,  those  being  left  to  the  relief  that  may 
be  afforded  by  means  of  a  habeas  corpus,  probably  in  conse- 
quence of  the  difficulty  of  interfering  otherwise  with  an  arrest 
on  that  writ,  "which  in  general  satisfies  the  debt. 

The  absence  of  this  power,  while  it  affords  no  reason  why 
creditors  should  not  be  aided  in  recovering  their  debts  from 


344          NEW  JERSEY  SUPREME  COURT. 

Bowne  v.  Titus  &  Scudder. 

persons  who,  although  able  to  pay,  desire  to  defraud  them  by 
all  legal  proceedings,  certainly  adds  force  to  the  reasons,  which 
in  favor  of  the  liberty  of  die  citizen,  so  carefully  guarded  by 
our  constitution  and  laws,  require  commissioners  and  judges 
to  be  careful,  that  the  salutary  provisions  of  the  law  are  sub- 
stantially and  fully  complied  with. 

The  officer  making  the  order  for  a  ca.  aa.  is  to  decide  upon 
the  legality  and  credibility  of  the  testimony  produced,  and 
as  fraud  is  not  to  be  presumed,  but  must  be  satisfactorily 
proved,  he  ought  to  be  exceedingly  careful,  especially  where 
only  the  evidence  of  the  interested  party  is  offered,  to  see 
that  the  facts  stated  are  such  as  prove  the  fraud  beyond  a 
reasonable  doubt. 

Proof  that  the  representations  made  to  the  plaintiff  were, 
as  stated,  absolutely  false,  was  in  this  case  indispensable  to 
show  fraud  in  contracting  the  debt.  It  is  plain  from  their 
nature,  as  set  forth  in  the  affidavit,  that  the  witness  had  no 
personal  knowledge  of  their  truth  or  falsity.  For  him  to 
swear,  that  he  had  discovered  recently  that  they  were  abso- 
lutely false,  was  no  more  proof  that  they  were  false,  than  a 
man's  swearing  that  the  defendant  had  disposed  of  his  prop- 
erty with  intent  to  defraud  his  creditors,  was  proof  that 
such  was  really  his  intention.  If  he  had  heard  the  defendant 
state  other  facts  which  had  a  tendency  to  prove  his  former 
statements  to  IKS  false,  or  if  he  had  otherwise  become  ac- 
quainted with  other  facts,  in  such  a  way  as  made  him  a  com- 
petent witness  of  them,  and  not  a  mere  retailer  of  hearsay, 
which  had  that  tendency,  he  should  have  stated  those  facts, 
and  how  they  came  to  his  knowledge,  and  left  the  commi- 
hioner  to  draw  the  legal  inference.  If  unable  to  state  any 
mich  facts  himself,  he  should  have  produced  the  testimony 
of  those  who  could. 

As  to  the  fraud  under  the  second  particular,  it  is  attempted 
to  be  -li'.wn  by  the  plaintiff's  oath  that  he  was  present  at  an 
examination  before  a  commissioner  under  the  act  to  prevent 
fraudulent  trusts  and  assignments,  and  heard  him  make  cer- 
tain statement*,  which  are  detailed  at  length  in  the  form  of 


NOVEMBER  TERM,  1863.  345 


Bowne  v.  Titus  &  Scudder. 


question  and  answer;  and  it  appears  that  these  are  copied 
from  the  unfinished  examination,  commenced  before  the  com- 
missioner upon  the  order  procured  by  these  plaintiffs,  and 
by  him  reduced  to  writing.  Had  this  examination  been 
finished,  so  as  to  contain  the  full  statements  of  the  party 
examined,  with  all  the  explanations  he  was  entitled  to  make, 
without  which  they  ought  not  to  have  been  used  for  any  pur- 
pose, and  had  the  proceedings  under  the  judge's  order  been 
entirely  closed,  I  am  very  clearly  of  opinion,  we  could  not 
sanction  such  a  use  of  these  statements.  No  law  authorizes 
an  examination  of  the  defendant,  at  the  instance  of  the  plain- 
tiff, to  show  him  guilty  of  a  fraud  that  will  subject  him  to 
imprisonment  as  a  fraudulent  debtor.  The  examination  that 
was  commenced,  was  for  the  sole  purpose  of  reaching  his 
property  by  direct  proceedings  for  that  specific  object.  To- 
permit  a  compulsory  examination  of  a  defendant,  authorized 
only  for  such  purpose,  to  be  used  for  another  and  wholly  in- 
consistent purpose,  seems  to  me  inadmissible. 

Inasmuch  as  it  appears  that  the  defendant,  when  arrested 
on  the  ca.  sa.,  arranged  as  well  this  debt  as  other  indebtedness 
with  the  plaintiffs,  and  there  is  much  reason  to  believe  his 
conduct  was  far  from  correct,  it  is  insisted,  for  the  plaintiffs, 
that  there  is  no  adequate  reason  for  setting  aside  a  writ  which 
is  in  fact  executed.  I  think,  however,  we  ought  thus  to  ex- 
press our  disapprobation  of  a  proceeding  so  irregular. 

The  case  (Ex  parte  case,  Spencer  653,)  was  different.  There 
the  defendant  made  use  of  his  arrest  under  the  ca.  sa.  as  a 
ground  of  his  application  for  the  benefit  of  the  insolvent 
laws,  and  was  properly  held  to  have  waived  the  irregularity. 
In  my  opinion,  the  writ  should  be  set  aside  with  costs  upon 
the  terms  that  the  defendant  stipulates,  to  bring  no  action  on 
account  of  any  proceedings  under  it. 

HAINES,  J.,  concurred. 


346          NEW  JERSEY  SUPREME  COURT. 


State  v.  Hoffman. 


THE  STATE,  ABRAHAM  APGAR,  PROSECUTOR,  v.  HOFFMAN, 
COLLECTOR  OF  THE  TOWNSHIP  OF  BETHLEHEM. 

1.  A  farm  lying  in  two  townships,  upon  which  there  was  a  dwelling 
house  situate  in  e.icli  of  saiil  townships,  one  of  which  was  occupied  by 
the  owner,  and  the  other  by  his  son,  who  tilled  the  farm  upon  shares, 
htld  to  be  all  occupied  by  the  owner,  and  to  be  rightfully  taxed  to 
him  in  the  township  wherein  he  resided. 

2.  It  seems  that  the  act  to  make  taxes  a  lien  on  real  estate,  Nix,  Dig.  853, 
{  33,  is  only  directory,  and  is  indisj>ensable  only  for  the  purpose  of 
authorizing  a  sale  of  the  land  when  the  owner  is  a  non-resident 


On  certiorari.     In  matter  of  assessment. 
For  the  prosecutor,  G.  A.  Allen. 
For  the  defendant,  B.  Van  Syckel. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  The  prosecutor  owns  a  farm. in  the  county  of 
Hunterdon,  which  is  divided  by  the  line  between  the  town- 
ship^ of  Bethlehem  and  Lebanon,  his  residence  being  on  that 
jwrt  which  lies  in  the  latter  township.  His  son  resides  in 
the  farm  buildings  on  that  part  within  the  township  of  Beth- 
lehem, and  as  the  case  agreed  upon  states,  farms  the  whole 
premises  on  shares,  occupies  the  farm  buildings,  having  the 
entire  control  and  management  of  the  premises,  the  father 
jHWturing  two  cows  and  two  horses,  picking  apples  from  the 
orchard,  and  assisting  at  times  in  working  thereon,  but  only 
at  his  pleasure.  The  prosecutor  was  assessed,  in  the  year 
1861,  for  the  value  of  the  whole  premises  by  the  assessor  of 
the  township  of  Bi-thlehcm,  and  it  is  the  object  of  this  cer- 
liorari  to  test  the  legality  of  that  jissessment.  It  is  under- 
bU*>d  that  he  was  also  awes.**!  for  the  same  premises  by  the 
asBCSHor  of  Ix-banon. 

It  is  provided,  by  the  .sixth  section  of  the  tax  law  of  1854, 

Atr.  l)lfj.  851,  §  63,*  that  i-very  |x?r8on  shall  be  assessed  in 
the  townnhip  or  ward  where  he  resides  when  the  assessment 

•Jfcr.,p.  1152,  |  65. 


NOVEMBER  TERM,  1863.  347 


State  v.  Hoffman. 


is  made,  for  all  lands  then  owned  by  him  within  said  town- 
ship or  ward,  either  occupied  by  him  or  wholly  unoccupied, 
and  when  the  line  between  two  townships  or  wards  divides  a 
farm,  or  lot,  the  same  shall  be  taxed,  if  occupied,  in  the  town- 
«hip  or  ward  where  the  occupant  resides. 

The  first  section  of  a  subsequent  act,  of  the  same  year,  to 
make  taxes  a  lien  on  real  estate,  3  Nix.  Dig.  853,  §  77,*  re- 
quires the  assessor  to  assess  all  lands  and  real  estate  in  the 
names  of  the  owners  thereof  respectively,  and  to  designate  the 
same  by  some  short  description,  such  as  will  be  sufficient  to 
ascertain  the  location  and  extent  thereof.  The  phrase  unoccu- 
pied land,  as  used  in  the  act  of  1854,  designated,  I  suppose, 
the  same  kind  of  land  as  was  described  in  the  previous  tax  law 
as  unimproved  or  untenanted  land,  by  which  was,  no  doubt, 
meant  land  having  no  visible  occupant  or  possessor.  The  pros- 
ecutor's farm  was  certainly  occupied  land,  and  I  see  no  reason 
to  doubt  that  he  was  himself,  both  the  owner  and  the  occupant 
of  all  but  the  buildings  actually  in  the  occupation  of  his  son. 

Land  let  on  shares  remains  in  the  possession  of  the  land- 
lord. Tayl.  Landlord  and  Tenant,  §  24.  The  tenant  being 
in  that  case  a  mere  farmer,  paid  for  his  labor  by  a  share  of 
the  produce.  The  burthen  of  proof,  that  he  was  not  the  occu- 
pant, was  on  the  prosecutor,  the  presumption  being  that  the 
.assessment  is  correct.  It  is  stated,  in  the  agreed  case,  that  his 
son  had  the  entire  control  and  management  of  the  premises; 
but  it  is  not  stated  that  he  possessed  or  occupied  them,  and  I 
think  that  the  inference  from  all  the  facts  stated  is  that  he  did 
not,  but  that  the  prosecutor  did. 

It  is  not  necessary  to  decide  in  this  case,  what  would  have 
been  the  consequence,  if  the  son  had  been  in  fact  the  tenant 
and  occupant  of  the  farm. 

If  the  first  section  of  the  act  to  make  taxes  a  lien  on  real 
estate  is  to  be  construed  as  peremptory  in  all  cases,  and  as 
repealing  the  previous  act,  which  authorized  land  to  be 
assessed  to  the  tenant,  3  Nix.  Dig.  846,  §  33,  it  must  have 
been  assessed  to  the  prosecutor,  as  owner  thereof,  partly  in 

*Xev.,p.  1163,  §114. 


348          NEW  JERSEY  SUPREME  COURT. 


S'ack  v.  Reeder. 


the  one  township,  and  partly  in  the  other.  Or  if  that  section 
is  only  director}',  and  is  iudisj>ensable  only  for  the  purpose  of 
authorizing  a  sale  where  the  owner  is  a  non-resident,  as  I  in- 
cline to  think,  it  might  have  been  assessed  to  the  tenant  in 
each  township.  The  whole  farm  could  not  have  been  assessed 
to  either  in  the  township  where  he  resided,  because  that  is 
authorized  only  in  the  ca.se  where  the  owner  is  also  the  occu- 
pant. As  in  this  case  the  prosecutor,  who  resides  in  Lebanon, 
was  the  owner  and  occupant,  it  follows  that  the  assessment  in 
Bethlehem  was  unauthorized,  and  must  be  set  aside. 

Assessment  set  aside. 
CITED  in  State  v.  Jevxll,  5  Vroom  260. 


PHILIP  F.  SLACK  v.  JOSEPH  REEDER. 

If  a  plaintiff,  who  becomes  entitled  to  a  judgment  by  default  in  vacation, 
omits  to  enter  the  saint-  until  after  the  term  next  after  such  default,  he 
cannot  have  such  judgment  until  he  has  given  thirty  days'  notice  to 
the  defendant. 


G.  S.  Gtnnon,  for  the  defendant,  moved  to  set  aside  the 
judgment  in  this  case,  as  having  been  improvidently  entered. 
A.  DutclM,  for  plaintiff',  contra.  Before  ELMER  and  VAN 
DYKE,  Justices. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  The  summons  in  this  case  was  returnable  in 
May,  1862,  and  a  declaration  filed  within  thirty  days  there- 
after. No  further  proceedings  were  taken  until  the  present 
term  of  the  court,  when  a  judgment  was  entered  by  default, 
and  an  assessment  filed,  followed  by  a  final  judgment  and 
execution.  This  proceeding  was  claimed  to  be  in  pursuance 
of  the  second  section  of  the  art  to  facilitate  the  administra- 
tion of  justice,  Nix.  Dig.  633,  §  110.*  We  think  this  judg- 
ment was  irregularly  entered,  and  must  be  set  aside,  and  we 
find,  on  con.sultation  with  the  other  judges,  that  they  con- 
cur in  this  opinion.  There  is  nothing  in  the  statute  which 

.  877,  {  144. 


NOVEMBER  TERM,  1863.  349 

Corlies  v.  Fleming. 

interferes  with  the  full  operation  of  section  90  of  the  rules  of 
this  court.  That  section  requires  that,  "  if  any  party  would 
take  advantage  of  the  failure  of  the  adverse  party  in  not 
filing  his  declaration,  plea,  or  other  pleading,  within  the 
time  prescribed  by  law,  he  shall  take  such  advantage  at  the 
term  next  after  such  failure."  The  statute  authorizes  an 
entry  of  the  judgment  in  term,  or  in  vacation,  so  that  if  after 
the  default,  a  judgment  shall  not  have  been  entered  before  the 
term,  it  may  be  then  entered  by  the  attorney  without  the 
order  of  the  court,  or  by  a  special  order  therefor,  as  before 
the  statute.  But  if  the  plaintiff  fails  to  do  either,  he  comes 
within  the  operation  of  the  rule,  and  cannot  afterwards  enter 
his  judgment  under  the  statute  or  by  order  of  the  court  on 
motion,  unless  he  has  given  thirty  days'  notice  to  the  adverse 
party,  as  prescribed  by  the  rule. 

Judgment  set  aside. 
CITED  in  Dock  v.  Elizabethtown  Manufacturing  Co.,  5  Vroom  314. 


GEOEGE  A.  COELIES  v.  CHAELES  P.  FLEMING  AND  JOHN 
P.  COELIES. 

If  one  of  three  makers  of  a  joint  and  several  promissory  note  die,  the 
contract  of  the  surviving  makers  remains  joint  as  well  as  several,  and 
payment  of  interest  within  six  years  by  one  of  the  surviving  makers 
will  take  the  case  out  of  the  statute  of  limitations. 


In  case  certified  from  Monmouth  Circuit  Court. 

This  action  was  brought  on  a  joint  and  several  promissory 
note,  given  by  the  defendants  and  one  Benjamin  Farriugton, 
dated  September  4th,  1850,  payable  one  year  after  date,  to 
John  W.  Stout,  or  order,  and  by  him  endorsed  to  the  plain- 
tiff. Farrington  died  before  the  1st  of  February,  1855,  and 
the  suit  was  commenced  on  the  llth  of  July,  1861.  The 
interest  was  paid  every  year,  by  Fleming,  to  the  plaintiff,  to 
the  year  1860  inclusive. 

The  statute  of  limitations  was  pleaded. 

VOL.  I.  Y 


350          NEW  JERSEY  SUPREME  COURT. 


Corlies  v.  Fleming. 


BBOWN,  J.  Notwithstanding  the  death  of  Farrington,  the 
contract  of  the  surviving  promisors  remains  joint  as  well  as 
several.  The  death  severed  the  contract  only  as  to  the  repre- 
sentatives of  the  deceased.  The  liability  of  the  survivors 
remains  unchanged.  The  payments,  by  Fleming,  of  interest 
up  to  February,  1855,  were  made  during  the  joint  liability  of 
all  the  drawers  of  the  note,  and  after  that  time  during  the 
joint  liability  of  himself  and  his  co-defendant. 

The  question,  therefore,  raised  by  the  plea  of  the  statute  of 
limitations,  i.s  whether  payment  by  one  of  the  joint  debtors, 
without  the  knowledge  and  consent  of  the  other,  relieves  the 
claim  from  the  bar  of  the  statute. 

As  to  the  party  making  the  payment,  it  is  not  questioned 
but  that  it  is  such  evidence  of  the  subsistence  of  the  debt,  and 
of  willingness  to  pay  it,  as  to  justify  the  inference  of  a  promise 
to  do  so.  The  contention  is,  that  it  does  not  bind  the  co- 
debtor,  because  he  did  not  make  or  assent  to  the  payment; 
and  further,  Ijeeause  there  is  no  agency,  express  or  implied, 
among  joint  debtors  (other  than  partners)  authorizing  one  to 
bind  the  other  by  a  new  promise,  express  or  implied.  If  this 
were  an  original  question,  I  am  not  at  all  sure  that  the  propo- 
sition would  not  be  held  good  law.  It  might  fairly  be  urged 
that  the  implied  agency  of  one  to  pay  the  debt,  or  a  part  of  it, 
for  the  other,  extended  only  to  the  fulfilling  of  their  obliga- 
tion, and  not  to  the  creation  of  a  new  one,  in  place  of  that 
barred  by  the  statute. 

But  irrespective  of  the  question,  whether  this  note  could 
at  any  time  be  considered  Irarred,  the  payments  having  been 
made  each  year,  to  take  this  ground  now  would  cause  much 
difficulty  and  injustice.  The  law  has  always,  I  believe,  l>een 
held  otherwise  in  this  stale.  The  jx-ople  have  acted  and  are 
now  acting  njw»n  the  belief  that  one  joint  debtor  may  by 
promising,  or  by  payment,  from  which  a  promise  is  inferred, 
preserve  a  claim  from  tin-  statute  bar,  or  if  barred,  revive  it 
against  all  the  debtors.  Upon  the  rule  contended  for  by  the 
defendants,  no  doubt  a  multitude  of  sureties  upon  joint  and 
several  notes  held  in  this  state,  and  now  considered  good  se- 


NOVEMBER  TERM,  1863.  351 


State  v.  Clothier. 


curities  for  the  money,  as  well  by  the  debtors  as  the  creditors, 
would  be  discharged.  This  ought  not  to  be  done  by  the 
courts,  nor  indeed  by  the  legislature.  A  new  rule,  if  re- 
quired, should  have  only  a  prospective  operation. 

That  the  law  has  been  so  held  in  New  Jersey  appears  by 
the  case  of  Disborough  v.  Bidleman,  considered  in  the  Su- 
preme Court,  and  reported  in  Spencer  275 — 277,  and  again 
in  the  Court  of  Errors,  reported  in  1  Zab.  677. 

The  memory  of  every  lawyer  will  probably  suggest  circuit 
rulings  sustaining  the  statement  of  Carpenter,  J.,  in  the  same 
case,  1  Zab.  680,  that  "  it  is  a  rule  which  has  been  frequently 
recognized  as  settled  law  in  this  state,  that  payment  by  one  is 
payment  for  all,  the  one  acting  virtually  as  agent  for  the  rest, 
and  will  take  the  case  out  of  the  statute." 

As  this  view  is  decisive  of  the  case  presented  by  the  cer- 
tificate, it  is  not  necessary  to  examine  the  other  question. 
The  circuit  should  be  advised  that  judgment  be  entered  for 
plaintiff. 

OGDEN,  J.,  concurred. 


THE  STATE,  FENNIMOKE,  PROSECUTOB,  v.  CLOTHIEE,  COL- 
LECTOE  OF  TAXES. 

1.  A  tax  voted  by  a  special  town  meeting  to  pay  bounties  to  volunteers, 
unauthorized  by  any  special  law,  where  the  notice  of  the  meeting  did 
not  specify  the  object,  and  no  specific  sum,  nor  any  certain  means  of 
ascertaining  the  proper  amount  were  determined,  held  to  be  illegal. 

2.  The  town  clerk's  oath,  that  a  certified  copy  of  a  resolution  of  the  town 
meeting  was  copied  from  the  town  book,  held  to  be  sufficient  proof. 

3.  A  tax  illegally  assessed  will  be  reversed  and  set  aside  when  regularly 
before  the  court  on  a  certiorari,  although  it  has  been  collected  by  war- 
rant. 


Argued  before  ELMER  and  VAN  DYKE,  Justices,  by  P.  D. 
Vroom,  for  the  prosecutor,  and  M.  Beasley,  for  defendant. 


352          NEW  JERSEY  SUPREME  COURT. 

State  v.  Clothier. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  The  tax  objected  to  in  this  case  was  assessed 
by  virtue  of  a  resolution,  passed  by  a  special  town  meeting  of 
the  inhabitants  of  the  township  of  Springfield,  county  of  Bur- 
lington, held  in  August,  1862,  which  directed  a  sufficient 
amount  of  money  to  be  raised  by  taxation  to  pay  certain 
bounties  to  volunteers,  without  specifying  how  much.  The 
assessor  proves  that  twelve  hundred  dollars  was  the  amount 
raised  for  this  purpose. 

If  the  facts  have  been  sufficiently  shown,  't  is  not  insisted 
by  the  counsel  for  the  township  that  this  tax  was  legally  as- 
sessed. It  cannot  be  doubted,  I  think,  that  it  was  illegal,  for 
three  reasons — first,  because  no  general  or  special  law  author- 
ized the  town  meeting  to  raise  any  money  for  the  purpose 
specified ;  second,  because  no  specific  sum,  nor  any  certain 
mode  of  ascertaining  the  sum  intended,  was  provided  for; 
third,  because  the  notice  of  the  special  town  meeting,  set  up 
by  the  clerk,  did  not  mention  the  object  or  purpose  of  the 
meeting,  as  required  by  the  statute.  Nix.  Dig.  876,  §  15.* 

It  is  urged,  however,  that  the  resolution,  produced  as  a  copy 
of  that  adopted  by  the  special  town  meeting,  is  not  properly 
proved.  The  clerk  of  the  township  certifies  that  it  is  a  true 
copy,  and  swears  that  it  is  a  copy  from  the  town  book,  and 
this  is  equivalent  to  proof  of  what  is  termed  a  sworn  copy. 
It  was  not  necessary,  nor  indeed  proper,  to  produce  the  book 
itself.  I  do  not  perceive,  however,  that  this  question  is  of  any 
importance.  The  assessor  proves  that  the  amount  ordered  to 
be  raised  by  the  special  town  meeting  was  twelve  hundred 
dollar-,  and  that  the  sum  thus  ordered,  and  not  otherwise 
authorized,  was  added  to  the  amounts  regularly  authorized  to 
be  raised.  If  no  formal  resolution  to  do  this  was  adopted  or 
recorded,  so  much  the  worse. 

But  it  was  also  insisted  that,  admitting  the  tax  to  have 
been  illegally  assessed,  it  was  a  tort  in  the  assessor  for  which 
he  is  liable ;  and  that  inasmuch  a*  the  tax  has  been  levied  by 
di*treiw  and  sale  of  the  prosecutor's  goods,  and  no  direct 
action  of  the  court  can  restore  the  money,  we  ought  not  to 
.  1196,  {  15. 


NOVEMBER  TERM,  1863.  353 


State  v.  Clothier. 


interfere  by  virtue  of  a  certiorari.  I  do  not  think  it  follows 
that  the  certiorari  is  not  properly  brought,  because  the  pro- 
secutor has  his  remedy  against  all  persons  concerned  in  assess- 
ing or  collecting  this  tax.  The  proceeding  to  determine  the 
legality  of  a  tax  assessment,  by  means  of  a  certiorari  directed 
to  the  officer  who  has  the  possession  and  enforcement  of  the 
•duplicate  containing  it,  seems  to  be  peculiar  to  this  state.  But 
the  practice  is  well  established,  has  been  found  to  be  a  safe 
and  effectual  remedy,  and  has  been  recognized  by  legislative 
enactments.  Nor  can  I  admit,  that  the  court  cannot  enforce 
;the  restoration  of  what  has  been  wrongfully  collected.  But  it 
is  not  necessary  now  to  affirm  or  deny  this  power.  We  cannot 
anticipate  that  the  township  authorities  will  hesitate  to  restore 
money,  which  shall  be  judicially  determined  to  have  been 
illegally  obtained,  and  leave  their  officers  to  pay  the  penalty. 

It  appears  that  the  prosecutor  appealed  from  the  tax,  and 
that  the  three  commissioners  of  appeal  actually  signed  a  certifi- 
cate reducing  it,  but  it  being  doubtful  whether  they  had  been 
•duly  qualified  to  act,  and  whether  the  certificate  had  been 
properly  signed,  the  township  officers  disregarded  it,  and  pro- 
ceeded to  collect  the  sum  originally  assessed.  That  so  much  as 
was  taken  off  by  the  commissioners  was  illegal,  is  now  clearly 
-established,  and  we  are  thus  relieved  from  the  necessity  of 
inquiring  into  the  regularity  of  the  certificate. 

Some  question  was  made,  on  behalf  of  the  prosecutor, 
whether  this  case  comes  within  the  statute.  Nix.  Dig.  853, 
§  74.*  I  see  no  reason  to  doubt  that  it  does.  The  rate  is  shown 
to  be  higher  and  greater  than  that  ordered  by  any  resolution 
authorized  by  the  law.  It  follows  that,  instead  of  setting 
aside  the  whole  tax,  the  amount  must  be  reduced  by  deducting 
the  amount  added  by  virtue  of  the  illegal  resolution,  as  to 
which  the  tax  must  be  reversed,  and  as  to  the  other  part 
affirmed.  The  precise  amount  to  be  deducted  not  being  shown, 
unless  ascertained  by  the  agreement  of  the  parties,  a  commis- 
sioner will  be  appointed  to  report  the  proper  sum. 

*Eev.,  p.  1172,  2  147. 


354          NEW  JERSEY  SUPREME  COURT. 


Dow  v.  Haley. 


FOLKERT  DOW  v.  HALEY  AND  HALEY. 

To  support  an  action  upon  a  physician's  bill,  the  plaintiff  must  prove 
that  he  has  been  duly  licensed  or  has  a  diploma,  (as  prescribed  by  the 
act  incorporating  medical  societies.) 


This  was  a  certiorari  to  the  Somerset  Pleas,  bringing  up  a 
judgment  of  that  court  upon  an  appeal. 

Argued  before  Justices  HAIXES  and  ELMER,  by  I.  N.  Diltey 
for  the  plaintiff,  and  by  Schenck,  for  defendants. 

ELMER,  J.  The  present  defendants,  who  were  the  plain- 
tiffs in  the  justice's  court  and  upon  the  appeal,  sued  the  plain- 
tiffs for  a  sum  of  money  alleged  to  be  due  them  for  visits  and 
medicines,  made  and  prescribed  as  doctors  of  physic. 

Upon  the  trial,  one  of  the  plaintiffs  testified  that  he  prac- 
ticed medicine  with  his  father,  the  other  plaintiff,  and  at- 
tended Mr.  Dow's  family,  in  connection  with  his  father,  before 
and  during  the  time  of  the  bill.  No  other  evidence  Ix-ing 
produced  that  these  plaintiffs,  or  either  of  them,  were  entitled 
to  practice  physic  or  surgery,  in  pursuance  of  the  provisions 
of  the  act  to  incorporate  medical  societies,  and  the  supplements 
thereto,  Nix.  Dig.  491,*  it  was  insisted  then,  as  it  is  now,  that 
they  were  not  entitled  to  recover. 

For  the  defendant,  it  i.s  insisted  that  proof  of  their  having 
acted  as  physicians,  was  sufficient  prima  facie  evidence  that 
they  were  in  fact  duly  authorized.  The  case  of  Moses  v. 
T/iornlon,  8  T.  R.  307,  is  relied  on,  but  it  does  not  support 
this  pro|>osition. 

Physicians  do  not  occupy  the  jwsition  of  attorneys,  sheriffs, 
and  other  public  officers,  and  are  not  enumerated  among 
those  whose  character  is  shown  by  proof,  that  they  have  no- 
toriously acted  as  such.  1  Grecnl.  Ev.,  §  83.  It  may  be 
law,  as  is  stated  doubtfully,  3  >St<trk.  Ev.  373,  1  Miund.  PL 
and  Ev.  357,  that  mere  proof  that  he  has  acted  us  a  physi- 
cian will  substantiate  a  general  averment  in  a  declaration 

*  By  an  act  entitled  "an  act  to  reorganize  the  Medical  Society  of  New 
Jeney,"  (Her.,  p.  676,)  the  act  LVi>.  Dig.  491)  was  repealed. 


NOVEMBER  TERM,  1863.  355 


Dow  v.  Haley. 


for  slander ;  but  if  it  be,  no  such  rule  can  be  safely  applied  to 
actions  brought  for  services,  in  face  of  a  statute  expressly  deny- 
ing such  an  action,  to  any  person  who  practices  without  a  license. 
The  object  of  the  act  regulating  the  practice  of  physic  in  this 
state  is  declared  to  be  to  prevent  irregular  pretenders  from 
imposing  on  the  ignorance  and  credulity  of  their  fellow  citi- 
zens. The  12th  section  of  the  original  act  imposes  a  penalty 
of  twenty-five  dollars  on  every  unlicensed  practitioner  for 
every  prescription,  and  expressly  declares  that  he  shall  be  for 
ever  disqualified  from  collecting  any  debt  incurred  by  such 
practice.  It  is  a  general  rule,  that  in  suits  for  a  penalty  or  in 
a  criminal  prosecution,  negative  averments,  peculiarly  within 
the  knowledge  of  the  party,  will  be  taken  to  be  true,  unless 
proved  by  that  party  ;  and  this  rule  has  been  properly  applied 
to  medical  practitioners.  Apoth.  Co.  v.  Beatty,  Ryan  &  M. 
159;  Sheldon  v.  Clark,  1  Johns.  R.  513.  In  Spaulding  v. 
Alford,  1  Pick.  33,  it  was  held  that  to  support  an  action  by  a 
physician,  proof  was  necessary  that  he  was  duly  licensed. 

The  principal  reliance  of  the  defendant's  counsel  seemed  to 
be  on  the  supplement,  approved  March  17th,  1854,  Nix.  Dig. 
495.*  This  provides  that  it  shall  be  lawful  for  all  persons  of 
good  moral  character,  who  have  a  diploma  of  a  particular  de- 
scription, to  practice  physic  and  surgery,  after  depositing  a 
copy  of  such  diploma  with  the  clerk  of  the  county ;  and  until 
such  copy  shall  be  so  deposited,  those  practitioners  who  shall 
neglect  the  same  shall  be  liable  to  the  penalty  of  the  act  to 
which  it  is  a  supplement.  Inasmuch  as  the  disqualification  to 
sue,  specified  in  the  twelfth  section  of  the  original  act,  is  here 
omitted,  it  is  urged  that  it  is  repealed,  and  is  no  longer  in 
force.  I  cannot  concur  in  this  conclusion.  The  thirteenth 
section  of  the  original  act  requires  a  copy  of  the  license  to  be 
deposited  in  like  manner  under  the  same  penalty,  omitting  the 
disqualification  ;  and  it  is  perhaps  the  true  construction  of  that 
section  and  .of  the  supplement  that  the  omission  to  deposit  the 
diploma  incurs  only  the  penalty,  and  does  not  prevent  a  suit, 
as  seems  to  have  been  held  in  the  case  of  Finch  v.  Gregory's 
Etfrs,  25  Wend.  469. 

*This  supplement  also  repealed  by  the  act,  Rev.,  p.  675. 


356          NEW  JERSEY  SUPREME  COURT. 


State  v.  Brooks. 


But  to  entitle  a  practitioner  to  the  benefits  of  the  supple- 
ment, he  must  show  himself  to  be  such  person  as  is  therein 
described.  Unless  he  is  such  person,  he  remains  subject  to 
the  disqualification  prescribed  in  the  12th  section,  as  against 
all  persons  who  shall  practice,  contrary  to  the  provisions  of 
die  act  of  which  it  is  a  part. 

I  am  therefore  of  opinion  that  the  judgment  of  the  Com- 
mon Pleas  must  be  reversed. 

HAINES,  J.,  concurred. 

Judgment  reversed. 

ClTED  in  Vaughn  v.  IlaukinxoiCs  Adin'r,  6  Vroom  81. 


THE  STATE  v.  CHARLES  BROOKS. 

1.  On  a  trial  for  murder,  it  is  not  a  sufficient  objection  to  the  panel  of 
jurors  served  upon  the  prisoner,  that  it  is  not  according  to  the  statute. 
The  particular  objection  should  be  pointed  out. 

2.  A  panel  headed  "petit  jury,  April  term,  1863,"  containing  the  names 
of  forty-eight  jurors,  and  the  names  of  the  townships  where  they  re- 
side abbreviated,  is  sufficient,  if  served  on  the  prisoner  at  the  same 
time  with  the  copy  of  the  indictment,  if  the  abbreviations  are  such  as 
clearly  to  indicate   the   residences  of  the  jurors.     A  cross  over  the 
name  of  one  of  the  jurors  will  not  vitiate  the  panel,  if  it  leaves  the 
name  of  such  juror  plainly  legible. 

3.  A  murder  wa«  committed  on  the  8th  March,  1863.     On  the  30th  of 
March,  the  prisoner  confessed  to  G.  II.  and  to  the  sheriff,  that  he  did 
it.    On  the  2d  of  April,  the  defendant  confessed  the  whole  thing  in 
writing  before  the  justice.     On  the  loth  April,  he  confessed  the  fact 
again  to  T.  M.,  and  on  the  20lh  of  April,  again  to  T.  R.     A  verdict 
of  guilty  being  rendered,  the  court  suspended  judgment,  and  certified 
the  caws  to  thi*  court  for  their  advisory  opinion,  an  to  whether  the 
Oyer  ahould  grant  a  new  trial,  on  account  of  illegal  admission  of  the 
mid  confession*. 

4.  Htld,  that  even  if  the  original  confession  were  illegally  admitted  in 
evidence,  l.«-i  .m-.-  <ilit.iin.-M  liy  undue  promises  and  threat*,  yet  that 
the  r«>iirt  would  decline  to  nil  vise  a  new  trial,  unless  the  subsequent 
confeiwionN  were  upccially  objected  to  in  the  Over,  on  account  of  their 
having  IM-.-H  obtained  tinder  tin-  influence  of  the  original  promises  or 
threat*     Tlie  awe  not  having  any  such  special  objections,  this  court 


NOVEMBER  TERM,  1863.  357 


State  v.  Brooks. 


will  presume  that  the  Oyer  were  satisfied,  as  a  question  of  fact  that 
the  subsequent  confessions  were  not  produced  by  the  influence  of  the 
original  promises  or  threats.  And  upon  a  review  of  the  facts,  this 
court,  seeing  no  reason  to  doubt  the  correctness  of  the  admission  of 
such  subsequent  confessions,  will  not  advise  a  new  trial. 


On  trial  for  murder  at  the  Burlington  Oyer  and  Terminer. 
Several  question  were  reserved  for  consideration  at  bar,  and 
were  argued  by 

For  the  State,  M.  Hutchinson. 
For  the  defendant,  J.  C.  Ten  Eyck. 

The  opinion  of  the  court  was  delivered  by 

VREDENBUKGH,  J.  The  defendant  was  convicted,  at  the 
last  Burlington  Oyer,  for  the  murder,  in  the  first  degree,  of 
one  Job  Brooks.  Sentence  was  suspended  for  the  purpose  of 
taking  the  advisory  opinion  of  this  court,  whether  there  should 
be  a  new  trial,  on  the  following  grounds : 

First.  Because  of  an  alleged  defect  in  the  list  of  jurors 
served  upon  the  prisoner. 

Secondly.  Because  of  alleged  illegal  admission  of  divers 
confessions  of  the  defendant. 

Waiving  any  question  as  to  the  regularity  of  the  proceed- 
ings here,  we  will  consider — 

First,  as  to  the  list  of  jurors.  This  list  is  on  a  half  sheet 
of  foolscap  paper,  and  lias  on  it  only  the  following  words: 
"  Petit  jury,  April  term,  1863.— Daniel  F.  Gibbs,  Pemb.," 
followed  by  forty-seven  other  names,  with  like  abbreviations 
for  the  names  of  the  township.  The  name  of  Joseph  Taylor, 
one  of  the  jurors,  is  crossed  thus:  "  Joph  }xj  Taylor." 

It  is  admitted  that  this  list  was  served  on  the  prisoner,  at 
the  same  time  with  the  copy  of  the  indictment,  within  the 
proper  time.  The  cause  was  moved  on  the  28th  of  April, 
1863,  whereupon,  on  behalf  of  the  defendant,  it  was  objected 
that  the  list  of  jurors  was  not  in  accordance  with  the  statute. 

The  statute.  Nix.  Dig.  197,  §  1,*  enacts,  that  in  murder, 
the  defendant  shall  have  a  copy  of  the  indictment  and  a  list 

*Mev.,  p.  279,  \  66. 


358          NEW  JERSEY  SUPREME  COURT. 

State  v.  Brooks. 

of  the  jury,  mentioning  the  place  of  abode  of  such  jurors,  two 
entire  days,  at  least,  before  the  trial,  and  which  jury,  by  the 
8th  section  of  the  same  act,  is  to  be  selected  from  the  general 
panel  drawn  to  attend  at  that  term;  and  unless  he  has  had 
such  panel  delivered  to  him,  he  shall  not  be  put  upon  his  trial 
without  his  consent  in  open  court. 

It  is  first  objected  to  this  panel,  that  it  does  not  show,  ui>ou 
its  face,  in  what  county  it  is,  nor  in  what  court,  nor  in  what 
case.  But  it  was  served  at  the  same  time  with  the  copy  of  the 
indictment,  in  which  all  these  things  appear.  There  was  no 
reason  for  rej>eating  them  upon  what  is  only,  by  the  statute, 
intended  to  be  a  mere  list  of  the  jury.  In  England,  even  for 
high  treason,  where  the  sheriff,  by  virtue  of  a  general  precept 
before  a  trial,  or  a  commission  of  general  jail  delivery,  returns 
a  general  panel,  the  same  is  entitled  generally,  "  names  of 
jurors  to  try  for  our  Lord  the  king,"  without  naming  any  of 
the  prisoners.  I  Chitty's  Or.  Law.  517. 

It  is  next  objected  to  this  panel,  that  it  does  not  appear 
that  it  was  selected  from  the  general  panel,  nor  by  whom. 
But  it  does  apj>ear  that  it  was  the  petit  jury  for  April  term, 
1863,  from  which  we  are  to  presume  that  no  more  than  these 
forty-eight  men  were  returned  to  that  term  as  petit  jurors, 
in  which  case  there  could  l)e  no  selection.  All  that  the 
sheriff  or  anybody  else  could  do,  was  precisely  what  he  has 
done,  serve  a  copy  of  the  whole  list,  and  it  is  a  matter  not 
material  by  whom  it  was  done.  All  the  statute  requires  is 
that  it  shall  l>e  delivered  by  the  sheriff,  or  other  proper 
officer,  to  the  prisoner,  which  it  is  admitted  was  done  in  the 
present  case.  It  is  next  objected,  that  the  statute  requires 
forty -eight  names  on  the  panel,  and  it  is  alleged  that  there 
are  only  forty-seven  on  this,  the  name  of  Joseph  Taylor  having 
a  croflfl  over  it.  Why  the  cross  was  put  there  we  are  not 
informed.  But  it  has  not  erased  the  name.  The  name  is  there 
yet,  quite  as  legible  as  if  the  cross  was  not  there.  No  ob- 
jection was  made  at  the  trial.  If  there  had  been,  it  might 
have  been  explained.  But  whether  objected  to  or  not,  we 
cannot  say,  against  the  evidence  of  our  eyesight,  that  the 


NOVEMBER  TERM,  1863.  359 

State  v.  Brooks. 

name  is  not  there.  It  is  next  objected,  that  the  statute 
requires  that  the  panel  should  state  the  residences  of  the 
jurors.  But,  in  the  first  place,  no  such  objection  was  taken 
at  the  trial,  and  so  could  not  have  injured  the  defendant  on 
the  trial  of  the  merits,  and  therefore  by  oiir  statute,  Nix.  Dig. 
205,  paragraph  45,  §  2,*  is  not  ground  for  reversal  even  on 
writ  of  error.  Next,  the  panel  does  state  the  names  of  the 
townships  by  abbreviations.  The  township  residence  of  each 
juror  is  stated  in  an  abbreviated  form.  No  one  could  for  a 
moment  hesitate  to  know,  from  these  abbreviations,  the  resi- 
dences of  the  jurors  as  perfectly  as  if  the  name  of  the  town- 
ship was  written  in  full.  We  think  this  panel  does  state  the 
residences  of  the  jurors  within  the  meaning  of  the  act.  In 
the  case  of  The  King  v.  Stone,  6  Term  R.  531,  in  a  trial  for 
treason,  the  objection  was  taken,  that  one  of  the  jurors  was  ill 
described,  his  place  of  abode  being  stated  to  be  Graf  ton  street, 
there  being  several  of  that  name.  The  objection  was  over- 
ruled. The  description  in  this  case  is  more  specific  than  that. 
Even  if  these  objections  had  been  here  specifically  upon  writ 
of  error,  we  see  no  reason  to  reverse  therefor. 

The  second  question  reserved  by  the  Oyer  is,  whether  there 
should  be  a  new  trial,  because  of  the  admission  of  certain  con- 
fessions of  the  defendant. 

The  murder  was  committed  on  the  evening  of  the  8th  of 
March,  1863. 

The  first  confessions  of  the  defendant  were  made  to  George 
Hulme,  on  the  morning  of  the  30th  of  March,  at  Salem, 
Ohio.  Mr.  Hultne  says,  that  with  a  constable  of  Ohio  and 
another  person,  on  the  morning  of  the  30th  of  March,  1863, 
he  arrested  the  defendant  near  Salem  aforesaid,  and  imme- 
diately put  handcuffs  on  him.  The  defendant  asked  them 
what  they  wanted  him  for.  Hulme  told  him,  to  go  back  to 
Jersey.  Hulme,  the  defendant,  and  the  constable  then  got 
in  a  carriage -to  return  to  Salem.  As  they  were  riding  along, 
Mr.  Hulme  told  the  defendant  that  he  was  suspected  of  hav- 
ing something  to  do  with  the  murder  of  his  father.  Defend - 

*Hev.,  p.  284,  \  89. 


360         NEW  JERSEY  SUPREME  COURT. 

State  v.  Brooks. 

ant  replied,  he  had  had  a  great  deal  of  trouble.  Hulme 
remarked  to  him  it  was  very  important,  if  he  knew  anything 
about  it,  to  tell  it ;  that  if  he  did  know  anything  about  it, 
the  only  safe  course  for  him  was  to  tell  the  truth.  The 
truth  was  the  only  thing  that  would  carry  him  through,  and 
give  him  friends  here  and  in  the  world  to  come;  that  lies 
would  not.  Hulme  says:  I  said  everything  I  could  to  get 
him  to  tell  the  truth,  and  all  he  knew  about  it.  I  used  no 
threats  or  promises.  I  told  him  to  tell  the  truth,  and  I 
would  do  all  I  could  for  him.  I  kept  telling  him  it  was  be- 
lieved there  were  others  that  knew  as  much  as  he  did,  if  not 
more.  Mr.  Hulme  then  proceeds  further,  and  says;  "Just 
before  we  got  into  Salem,  I  remarked,  Charley,  if  you  have 
anything  to  say,  say  it  before  we  get  into  Salem."  He  hesi- 
tated a  moment,  and  then  says:  Mr.  Hulme,  I'll  tell  you  all 
about  it.  "  I'm  the  boy  that  done  it ;  I  struck  the  first  blow ; 
I  struck  him  but  once,  but  Tim  finished  him."  The  defend- 
ant then  went  on,  and  gave  a  detail  of  the  transaction,  which 
it  is  needless  to  recapitulate  now. 

The  defendant  made  substantially  the  same  statement  to 
sheriff  Leeds,  on  the  same  day,  while  in  the  cars  returning 
to  New  Jersey.  On  the  2d  of  April,  1863,  the  defendant's 
examination  was  taken  in  writing  before  Ellsworth  Hoi  man, 
a  justice  of  the  ]>eace,  and  to  which  he  signed  his  name. 
The  justice  previously  said  to  him  :  Charles,  you  are  charged 
with  the  m unlur  of  your  father ;  if  you  have  anything  to 
say  in  relation  to  the  murder,  I  will  hear  it.  The  justice 
also  said  to  him,  that  he  wished  him  to  understand,  that  he 
was  not  required  to  state  what  he  knew  respecting  it,  esjieci- 
ally  if  it  would  criminate  himself.  The  justice  says:  I  cau- 
tioned him  on  that  point,  lest  it  should  come  against  him  at 
some  future  time.  1  also  said,  what  he  might  say  must  be 
Voluntary,  of  hw  own  free  will.  1  think  George  Hulme  was 
pnx'iit  during  the  whole  examination.  In  this  written 
examination,  the  defendant  makes  the  same  confessions,  in 
ftUDHtanoe,  that  he  had  previously  to  Mr.  Hulme  and  the 
sheriff. 


NOVEMBER  TERM,  1863.  36t 


State  v.  Brooks. 


On  the  15th  of  April,  1863,  the  defendant  told  Thomas 
McNevinney  the  same  story  that  he  had  done  to  Hulme,  con- 
fessing that  he  did  it,  and  stating  divers  circumstances  attend- 
ing the  transaction. 

On  the  20th  of  April,  1 863,  the  defendant  told  one  Thomas 
Runos  that  he  had  done  the  deed  himself.  Here  the  defend- 
ant has,  as  often  as  five  times,  on  as  many  different  occasions, 
to  as  many  different  people,  confessed  that  he  committed  this 
murder.  They  are  prima  facie  admissible,  unless  the  defence 
shows  something  to  make  them  inadmissible. 

It  is  contended  here,  on  the  part  of  the  defence,  that  they 
are  all  inadmissible,  on  account  of  having  been  procured  by 
undue  promises  and  threats. 

It  is  not  pretended  that  any  undue  promises  or  threats,  or 
any  promises  or  threats,  or  undue  influences  whatever,  were 
used  at  the  time  of  the  confessions  before  the  justice,  to  Mc- 
Nevinney or  to  Runos.  But  it  is  contended  that  Mr.  Hulme,. 
to  whom  the  first  confession  was  made,  did  promise  him  to  be- 
friend him  if  he  would  tell  the  truth,  and  that  such  confession 
was  untruly  made  in  consequence  of  such  promise ;  and  that 
the  same  promise  induced  him  to  persevere  in  the  same  state- 
ments subsequently  before  the  justice  and  McNevinney  and 
Runos. 

I  shall  first  examine  whether  the  confessions  before  the 
justice  and  to  McNevinney  and  Runos  were  properly  admitted 
by  the  court.  Sitting  here  to  give  an  advisory  opinion  to  the 
Oyer,  not  upon  specific  questions  of  law,  but  as  to  the  pro- 
priety of  a  new  trial,  can  we  say  that  the  court  below  should 
have  overruled  this  testimony  ? 

On  the  trial,  the  written  confession  and  the  one  to  Mc- 
Nevinney were  objected  to,  but  the  case  does  not  show 
upon  what  ground  they  were  objected  to.  They  were  prima 
facie  admissible,  and  to  make  the  objection  a  legal  one,  it 
should  have  been,  that  the  previous  confessions  were  ob- 
tained by  undue  promises  or  threats,  and  that  the  confes- 
sions objected  to  were  obtained  by  the  continuing  influence 
upon  the  prisoner's  mind  of  such  threats  or  promises.  If 


362          NEW  JERSEY  SUPREME  COURT. 

State  v.  Brooks. 

such  an  objection  had  l>een  taken,  the  state  might  have 
shown  the  contrary  thereof;  a  general  objection  was  not 
sufficient.  The  reason  of  the  objection  should  have  been 
sj>ecially  shown.  But  suppose  this  objection  had  been  speci- 
ally made,  what  was  the  question,  in  this  regard,  before  the 
Oyer?  It  was  not  whether  the  confessions  to  Hulrne  and  the 
sheriff"  were  obtained  by  undue  promises,  but  whether  the 
facts  in  evidence  overcame  the  presumption  that  the  confes- 
sions to  the  justice,  McNevinney,  and  Runos  were  likewise 
made,  by  the  continuing  influence  upon  the  defendant's  mind 
of  those  promises.  These  were  questions  of  fact  for  the  Oyer 
to  settle,  and  they  did  settle  them.  They  decided,  if  the  ques- 
tion was  raised  at  all,  that  in  their  opinion  the  confessions  to 
the  justice  and  to  McNevinney  and  Runos  were  not  obtained 
by  the  continuing  operation  upon  the  defendant's  mind,  of  the 
supposed  promises  by  Hulrne.  Can  we  say  that  the  Oyer  was 
wrong  in  that  decision  ? 

It  does  not  ap|>car,  by  the  case,  that  this  question  was 
raised  before  the  Over,  and  if  it  was  not,  the  evidence  was 
clearly  admissible.  But  if  this  question  was  raised  before  the 
Oyer,  it  was  decided  by  that  court  that  these  confessions  to  the 
justice,  to  McNevinney,  and  Runos  were  not  produced  by  the 
supposed  inducements  held  out  by  Mr.  Hulme.  Can  we  say 
that  the  Oyer  was  wrong  in  this  decision  ? 

In  the  case  of  7Vu-  SUite  v.  Guild,  5  Hold.  180,  the  Oyer 
overruled  the  original  confessions,  upon  the  ground  that  they 
had  been  induced  by  promises,  but  let  in  subsequent  confes- 
sions, ujx>n  the  ground  that  the  Oyer  concluded,  from  the 
circumstances,  that  the  hopes  induced  by  the  original  prom- 
ises were  dis|x»lled.  In  the  charge  to  that  jury,  Justice 
Drake  said:  "Although  an  original  confession  may  have 
been  obtained  by  impro|»er  means,  subsequent  confessions  of 
the  same,  or  of  like  facts,  may  be  admitted,  if  the  court  be- 
lieves, from'  the  length  of  time  intervening,  from  proper 
warning  of  the  consequences  of  confessions,  or  from  other 
circumstances,  that  the  delusive  hopes  or  fears,  under  the 
influence  of  which  the  original  confessions  were  obtained, 
were  entirely  disjiclled." 


NOVEMBER  TERM,  1863.  363 


State  v.  Brooks. 


The  question  was  reviewed,  and  the  proceedings  and  charge 
of  Justice  Drake  received  the  entire  approval  of  this  court. 
It  was  thus  a  question  of  fact,  whether  in  the  case  before  us, 
the  confessions  to  the  justice,  to  McNevinny,  and  to  Runos 
were  induced  by  the  promises  made  by  Hulme  to  be  settled  by 
the  Oyer.  We  could  not  reverse  their  decisions  upon  this 
point  without  also  constituting  ourselves  a  tribunal  to  decide 
facts,  and  we  are  not  in  as  favorable  position  to  decide  rightly 
as  the  Oyer.  But  we  do  not  see  in  the  present  case  the  slight- 
est ground  to  doubt  the  correctness  of  the  result  to  which  the 
Oyer  arrived,  even  if  the  objection  had  been  specially  taken. 
Take  the  case  of  the  written  confession  to  the  justice.  It  took 
place  on  the  2d  of  April,  three  days  after  the  confession  to 
Mr.  Hulme.  He  was  cautioned  by  the  justice  that  he  was  not 
required  to  state  what  he  knew  respecting  the  murder,  especi- 
ally if  it  would  criminate  himself,  lest  it  should  come  against 
him  at  some  future  time,  and  what  he  should  say  must  be  vol- 
untary. No  threats  or  promises  whatever  were  made  use  of. 
Now  why  should  the  Oyer  conclude,  that  what  the  defendant 
should  then  say,  would  be  the  result  of  what  Hulme  had  said 
to  him  three  days  before?  He  was  told  that  he  was  not  required 
to  state  anything,  and  what  he  should  state  must  be  voluntary. 
He  however  saw  fit  to  go  on,  and  make  his  written  confession. 
In  what  way  does  the  confession  to  the  justice  differ  from  a 
plea  of  guilty  before  the  Oyer?  If  this  confession  should  be 
refused,  for  the  same  reason  the  Oyer  should  have  refused  a 
plea  of  guilty,  upon  the  ground,  that  having  once  been  in- 
duced to  accuse  himself,  the  plea  of  guilty  is  presumed  to  be 
made  under  the  same  motives. 

I  see  no  ground  whatever  to  conclude  that  this  entire  writ- 
ten confession  was  induced  by  any  promise  by  Hulme  or  the 
sheriff.  These  kinds  of  confessions  are  continually  received ; 
they  were  in  the  case,  before  referred  to,  of  Guild.  So  also  in 
Williams'  case,  1  City  Hall  Recorder  149 ;  and  of  others,  4 
City  Hall  Recorder  138,*  and  of  Mills,  5  City  Hall  Recorder 
78.  This  written  confession  contains  many  details  showing 

*  Case  of  Bevorhan  et  ul. 


364          NEW  JERSEY  SUPREME  COURT. 

State  v.  Brooks. 

internal  evidence  of  its  truth, — details  proved  by  other  wit- 
nesses. 

But  again,  the  defendant  confessed  to  McNevinny,  on  the 
15th  April,  seventeen  days  after  his  confession  to  Huhne. 
What  reason  had  the  Over  to  believe  that  this  was  induced 
by  what  he  had  been  told  by  Hulme?  I  see  nothing  in  the 
evidence  which  should  have  induced  the  Oyer  to  believe  that 
this  was  the  consequence  of  what  Hulme  had  said  to  him,  and 
so  with  regard  to  the  confession  to  Runos  so  late  as  the  20th 
of  April. 

As  to  the  evidence  of  Runos,  no  objection  to  its  admission 
was  made  at  all.  The  confession  to  him  was  full  and  com- 
plete that  he  did  the  deed.  Upon  the  confessions  to  Runos 
alone  the  court  would  be  unwilling  to  advise  a  new  trial. 

It  appears  to  me  that,  if  the  Over  were  bound  to  reject 
these  confessions  because  of  the  conversation  between  Hulme 
and  the  defendant  on  the  30th  of  March,  the  Oyer  should 
have  rejected,  for  the  same  reason,  his  plea  of  guilty,  if  he 
had  made  one  in  open  court. 

It  has  been  a  question  whether  the  decision  of  the  admis- 
sibility  of  these  confessions  was  one  for  the  court  or  the  jury. 
But  it  is  now  settled  that  it  is  one  for  the  court.  The  court 
weighs  the  evidence  upon  this  point,  and  admits  or  rejects  the 
evidence  in  its  discretion.  What  weight  the  jury  are  to  give  it, 
is  another  matter.  This  makes  it  necessary  to  decide  whether 
the  Oyer  should  have  rejected  the  confessions  to  the  sheriff 
and  Mr.  Hulme.  The  written  confessions  are  better  evidence 
than  the  verbal  ones  to  I  Inline,  and  they  being  admissible,  it 
is  a  matter  of  indifference  whether  those  to  Hulme  and  the 
sheriff  are  in  evidence  or  not.  The  evidence  of  the  written 
confession  and  to  McNevinny  and  Runos  must  have  produced 
a  conviction  whether  the  confessions  to  Hulme  were  in  evi- 
dence or  not. 

The  question  being  one  of  discretion,  this  court  sees  no  rea- 
son to  recommend  a  new  trial,  when  it  is  apparent  that  it 
could  only  result,  as  this  one  has,  in  a  verdict  of  guilty. 

The  court  decline  to  advise  the  Oyer  to  give  a  new  trial. 


NOVEMBER  TERM,  1863.  365 


State  v.  Council  of  Elizabeth. 


THE  STATE,  LUTHEE  T.  HAND  AND  OTHEKS,  PEOSECUTOES, 
v.  THE  CITY  COUNCIL  OF  THE  CITY  OF  ELIZABETH. 

1.  On  petition  to  a  municipal  authority,  asking  that  a  street  may  be 
paved,  the  city  council  may  regulate  the  surface  of  the  street,  by  fill- 
ing and  excavating  preparatory  to  paving  it,  and  include,  as  a  neces- 
sary incident,  the  costs  of  sucli  grading  in  the  assessment  for  the  costs 
of  the  paving. 

2.  Assessments  for  the  paving  of  intersections,  under  the  charter  of  the 
city  of  Elizabeth,  must  be  confined  to  the  line  of  the  street  on  which 
the  improvement  is  applied  for. 

3.  It  is  not  necessary,  in  order  to  give  the  city  council  of  Elizabeth  juris- 
diction, that  it  should  appear  by  their  minutes  that  they  had  appointed 
a  day  to  hear  persons  objecting  to  the  improvement,  or  interested 
therein  ;  it  is  sufficient  if  such  notice  of  hearing,  drawn  in  compliance 
with  the  provision  of  the  charter  by  order  of  the  city  council,  be 
regularly  advertised  by  the  city  clerk. 


Certiorari  to  set  aside  assessment  for  paving  a  street  under 
authority  of  the  city  council  of  the  city  of  Elizabeth. 

For  plaintiff  in  certiorari,  J.  Alward. 
For  defendant,  R.  S.  Green. 

The  opinion  of  the  court  was  delivered  by 

OGDEN,  J.  It  appears,  by  the  papers  sent  to  this  court,  in 
the  return  of  the  city  clerk  to  a  writ  of  certiorari,  directed 
to  the  city  council  of  the  city  of  Elizabeth,  that  upon  an  ap- 
plication in  writing  to  the  council,  made  by  Luther  T.  Hand 
and  others,  in  May,  1859,  proceedings  were  had  in  the  council, 
whereby  First  street,  at  Elizabeth  Port,  from  Broadway  to 
Elizabeth  avenue,  was  paved  under  the  superintendence  of  the 
street  committee  and  street  commissioner. 

After  the  execution  of  the  work,  and  an  asseasment  of  the 
costs  and  expenses  thereof,  made  by  commissioners,  and  laid 
upon  the  owners  of  the  land  and  real  estate  upon  the  street 
between  the  designated  points,  several  of  the  petitioners  and 
others  interested  applied  for  and  obtained  the  certiorari, 
I.  Z 


366          NEW  JERSEY  SUPREME  COURT. 

State  v.  Council  of  Elizabeth. 

which  removed  into  this  court  all  the  proceedings  had  by  the 
council  in  the  matter  of  paving  said  street  and  making  the 
assessment. 

Fifteen  sj>ecial  reasons  were  assigned  why  the  assessments 
should  be  set  aside,  but  the  arguments  were  confined  princi- 
pally to  three  objections. 

The  j>etitioners  asked  that  the  street  might  be  paved,  and 
it  appears  that  the  estimate  made  of  the  costs  of  the  work 
included  the  expenses  of  grading  the  street  preparatory  to 
jiaving.  It  is  clear  that  the  paving  could  not  have  been 
properly  done  without  so  regulating  the  surface  of  the  street, 
by  filling  and  excavating,  as  to  form  a  proper  bed  for  putting 
down  the  stones.  The  expenditure  made  in  the  grading  was 
a  necessary  incident  to  the  paving,  and  it  was  properly  as- 
sessed as  a  part  of  the  costs  of  the  work  petitioned  for.  That 
objection  to  the  proceeding  cannot  prevail. 

Another  untenable  objection  was,  that  all  the  costs  were 
assessed  upon  the  proj>erty  holders  on  First  street,  whereas  it 
was  contended  that  a  proportion  of  the  expenses  for  paving 
the  intersections  should  either  have  been  placed  upon  owners 
of  lots  on  the  intersecting  streets,  or  have  been  assumed  by 
the  city. 

The  application  for  paving  First  street  could  not  have  been 
complied  with  by  leaving  the  half  of  each  cross-street  with- 
out pavement,  and  as  the  property  holders  on  those  streets  did 
not  apply  for  the  improvement,  the  council  had  no  jxwer  to 
make  them  contribute  to  the  expense  of  doing  it. 

The  first  reason  assigned,  and  the  one  on  which  the  argu- 
ment was  chiefly  made,  is  that  it  does  not  apj>ear  by  the 
return  that,  In-fore  ordering  the  work  to  be  done,  the  council 
had  complied  with  tin-  requirements  of  the  charter  of  the 
city.  The  j>o\ver  to  make  improvements  by  grading,  paving, 
and  otherwise,  is  conferred  upon  the  council  by  the  second 
section  of  a  supplement  to  the  charter,  approved  March  15th, 
1859.  The  section  direct*  that  the  improvement  asked  for 
bhall  be  made  at  the  expeiiM-  of  the  owners  of  lands  and  real 
estate  on  the  street,  or  section  of  the  street  where  made.  It 


NOVEMBER  TERM,  1863.  367 


State  v>  Council  of  Elizabeth. 


contains  a  proviso,  that  before  the  council  shall  determine 
that  the  improvement  shall  be  made,  or  work  be  done,  they 
shall  give  notice  in  a  newspaper  by  advertisement  for  at  least 
two  weeks,  briefly  describing  such  road,  work,  or  improve- 
ment, and  requesting  all  persons  who  may  object  thereto,  or 
be  interested  therein,  to  appear  in  person  or  by  agent  before 
the  council,  or  their  committee,  at  a  time  and  place  to  be  des- 
ignated thei'ein,  to  be  heard  in  reference  thereto.  Another 
proviso  directs  that  a  like  notice  shall  be  served  upon  each 
owner  of  land  upon  or  before  which  the  improvement  is  to  be 
made,  if  resident  within  the  city,  at  least  ten  days  before  the 
time  appointed  ;  and  if  non-residents,  by  placing  the  notice  in 
the  post-office,  directed  to  their  address,  if  known. 

The  application  was  made  to  the  council  in  May,  1859 ;  the 
certiorari  is  tested  November  30th,  1860;  and  in  the  interval 
the  city  clerk  had  died,  and  the  street  commissioner  who  gave 
the  notices  had  removed  from  the  state.  A  rule  was  granted 
by  the  court,  upon  an  application  in  behalf  of  the  council,  that 
they  might  examine  witnesses  upon  several  points,  one  of 
which  was  whether  the  required  advertisements  were  published 
and  the  notices  given.  One  of  the  proprietors  of  the  news- 
paper published  at  Elizabeth  testified  that  a  paper  shown  to 
him  is  the  copy  of  an  advertisement  which  appeared  in  that 
paper  on  the  24th  and  31st  May,  1859.  The  paper  thus 
identified  is  a  public  notice,  drawn  in  compliance  with  the 
proviso  of  the  section  already  referred  to,  dated  May  17th,  1859, 
and  signed  :  By  order  of  the  city  council.  A.  M.  Elmer,  clerk. 

It  was  insisted  that  it  should  appear  from  the  minutes  of 
the  council,  that  they  had  appointed  the  day  for  hearing,  and 
that  such  proof  was  necessary  to  give  them  jurisdiction.  The 
case  of  Durant  v.  Jersey  City,  1  Dutcher  309,  was  cited  in 
support  of  the  position ;  but  I  do  not  think  that  the  ruling 
there  made  by  the  court  is  conclusive  against  the  regularity 
of  the  proceedings  in  this  case.  By  the  language  of  the 
charter  of  Jersey  City,  the  council  were  directed  to  appoint  a 
time  and  place,  and  give  notice  of  the  nature  of  the  applica- 
tion and  of  the  time  and  place  for  hearing.  In  the  charter 


368          NEW  JERSEY  SUPREME  COURT. 

State  v.  Miller. 

of  Elizabeth,  the  proviso  requires  that  they  shall  give  notice 
in  the  Elizabeth  paj>er  by  advertisement,  for  at  least  two- 
weeks,  briefly  describing  the  improvement,  and  requesting 
parties  interested  to  appear  at  a  time  and  place,  to  be  desig- 
nated therein,  to  be  heard,  &c.  The  advertisement  proved  is 
a  literal  compliance  with  the  proviso,  and  was  made  by  their 
clerk,  who  is  the  official  executive  agent  of  the  council.  The 
advertisement  could  not  legally  have  been  given  in  any  other 
way.  It  appears  from  the  affidavit  of  Lewis  Bacon,  taken  on 
commission,  that  he  was  the  street  commissioner  at  the  time, 
and  that  he  gave  the  notices  to  the  landholders  required  in 
the  proviso  of  the  section  of  the  act.  The  fact  that  the  street 
committee  met  on  the  day  designated  in  the  notice,  and  heard 
parties  interested,  is  sufficient  to  show  that  the  clerk,  in 
publishing  the  advertisements,  acted  in  furtherance  of  an» 
appointment  and  order  of  the  council.  I  am  satisfied  that  it 
sufficiently  appears,  from  the  return  and  the  proofs,  that  the 
power  delegated  to  the  council  was  pursued  with  sufficient 
strictness,  and  that  they  were  authorized  by  the  law  to  pass- 
the  ordinance  which  underlies  their  subsequent  proceedings. 
The  proceedings  of  the  council  should  in  all  things  be 
affirmed. 

AFFIRMED,  2  Vroom  547. 

CITED  in  State,  Copeiand,  pros.,  v.  Village  of  Passaic,  7  Vroom  387 ;  SlaU 
Van  Tassel,  pros.,  v.  Jersey  City,  8  Vroom  132;  State,  Watrous,  pros.,  V. 
Elisabeth,  11  Vroom  279. 


THE  STATE,  THE  MORRIS  AND  ESSEX  RAILROAD  COM- 
PANY, PROSECUTORS,  v.  MILLER,  OOLLECTOB  OF  THE 
TOWNSHIP  OF  MORRIS. 

1.  The  charter  of  the  Morris  and  Essex  Railroad  Company  subject*  the 
company  to  a  tax  of  one  and  a  lialf  per  cent,  on  the  coat  of  the  road, 
an  soon  as  the  net  proceeds  shall  equal  seven  per  cent.,  and  provides 
that  no  other  tax  shall  be  levied  upon  the  company.  By  the  terms  of 
the  charter,  it  may  be  altered  or  regaled  by  the  legislature.  The 
subsequent  general  tax  law  of  1862  subjected  to  taxation  the  real 
•state-  of  all  private  corporation*,  "  except  those  which  by  virtue  of' 


NOVEMBER  TERM,  1863.  369 


State  v.  Miller. 


any  irrepealable  contract  in  their  charters  or  other  contracts  with  the 
state  are  expressly  exempt  from  taxation,"  and  it  repealed  all  acts, 
whether  special  or  local,  inconsistent  with  its  provisions.  Held,  that 
the  tax  law  of  1862  repealed  the  provision  of  the  charter  in  regard  to 
taxation,  and  that  the  assessment  made  upon  the  real  estate  of  the 
company  in  the  township  of  Morris  was  rightfully  made  under  the 
general  law. 

U.  No  "irrepealable  contract"  can  result  from  provisions  in  a  charter 
which  is  made,  in  terms,  subject  to  alteration,  amendment,  or  repeal 
by  the  power  granting  it. 

-3.  Where  the  right  to  alter  or  amend  a  charter,  whenever  the  public 
good  may  require,  is  reserved,  the  legislature  is  the  proper  tribunal  to 
determine  when  the  right  shall  be  exercised. 


Oil  certiorari.     In  matter  of  taxation  upon  the  real  estate 
of  the  prosecutors  in  the  township  of  Morris. 

Argued  before  HAINES  and  ELMER,  Justices. 
For  the  prosecutors,  Theo.  Little. 
For  defendant,  J.  Vanatta. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  This  certiorari  is  prosecuted  by  the  Morris  and 
Essex  Railroad  Company  to  test  the  legality  of  the  tax  assessed, 
for  state,  county,  and  township  purposes,  upon  their  real 
•estate  in  the  township  of  Morris,  valued  at  sixty  thousand 
•dollars.  The  principal  'office  of  the  company  is  admitted  to 
be  in  the  city  of  Newark,  and  this  tax  is  assessed  upon  their 
station  and  track  within  the  bounds  of  the  township  of  Morris. 
The  fifteenth  section  of  the  charter  of  this  company  provides 
that,  "  as  soon  as  the  net  proceeds  of  said  railroad  shall  amount 
to  seven  per  cent,  upon  its  cost,  the  said  corporation  shall 
pay  to  the  treasurer  of  this  state  a  tax  of  one  half  of  one  per 
centum  on  the  cost  of  said  road,  to  be  paid  annually  thereafter 
on  the  first  Monday  of  January  of  each  year;  provided,  that 
no  other  tax-,pr  impost  shall  be  levied  or  assessed  upon  the 
said  company."  This  section  has  been  Jield  to  exempt  the 
company  from  any  tax  other  than  that  specified,  as  well 
before  the  tax  of  one  half  per  cent,  shall  become  payable  to 


370         NEW  JERSEY  SUPREME  COURT. 

State  v.  Miller. 

the  state  as  afterwards.     The  State  v.  Minton,  3  Zab.  529  ; 
The  State  v.  JBeittley,  Ib.  532. 

But  it  is  insisted  that  the  tax  law  of  1862,  under  which 
this  tax  was  assessed,  has  altered  this  provision,  and  subjected 
this  and  the  other  railroad  companies  in  this  state,  whose 
charters  are  repealable,  to  the  tax  thereby  imposed,  and  lias 
exempted  them  from  any  tax  payable  to  the  treasurer  of  the 
state.  The  first  question  therefore  to  be  decided  is,  whether 
the  charter  of  the  Morris  and  Essex  railroad  is  subject  to 
repeal  or  alteration  by  the  legislature  against  the  consent  of 
the  company. 

Section  20th  of  the  original  charter,  Acts  of  1835,  p.  32,. 
declares  "  that  the  legislature  reserve  to  themselves  the  right 
to  alter,  amend,  or  repeal  this  act,  whenever  they  think 
proper."  A  supplement,  passed  in  1836,  declares  "  that  the 
legislature  reserve  to  themselves  the  right  to  alter  or  amend 
this  supplement,  or  the  act  to  which  this  is  a  .supplement, 
whenever  the  public  good  may  require  it."  That  an  act 
granting  corporate  privileges  to  a  body  of  men,  and  ex- 
pressly exempting  them  from  taxation,  becomes,  when  ac- 
cepted, a  contract,  which  is  protected  by  the  constitution  of 
the  United  States  from  l>eing  impaired,  is  too  well  established 
by  judicial  decisions,  by  the  action  of  the  legislature,  and  the 
acquiescence  of  the  |>eople,  to  be  questioned.  But  the  weight 
of  authority  is  equally  decisive,  that  if  the  act  reserves  a  right 
of  re|K-al  the  comiKiny  takes  the  charter,  and  the  contract 
thereby  implied  or  expressed,  subject  to  such  alterations  as 
the  legislature  may  deem  expedient.  Any  ell  &  Ames  Cor.,  1th 
edit.,  §  767,  ami  case*  in  note*;  3  Kent's  Com.,  10fA  edit.,  306. 
No  "  irrejjoalable  contract"  can  result  from  provisions  in  a 
charter  which  are  made  in  terms  subject  to  be  altered, 
amended,  or  repealed  at  the  pleasure  of  the  power  granting 
them,  any  more  than  a  contract  in  any  other  manner  entered 
into,  which  contains  an  express  provision  that  it  shall  be 
subject  to  be  abrogated  or  altered  at  the  pleasure  of  one  of 
the  jwirties,  can  be  considered  as  an  "  irrejHnilable  contract." 
In  the  cases  of  E.  and  JV.  E.  Railroad  Co.  v.  Casey.  26  Penn. 


NOVEMBER  TERM,  1863.  371 


State  v.  Miller. 


301,  and  Miners  Bank  v.  U.  S.,  1  Green's  Iowa  Rep.  553,  it 
was  held,  that  where  the  right  to  resume  the  privileges 
granted  was  reserved  only  in  cases  of  their  abuse  or  misuse, 
the  legislature  were  the  sole  judges  of  such  abuse  or  misuse, 
and  could  repeal  without  a  judicial  investigation.  The  charter 
in  question  reserves  the  right  to  alter  or  amend  whenever 
the  public  good  may  require ;  and  that  the  legislature  is  the 
proper  tribunal  to  determine  what  the  public  good  requires 
in  all  matters  of  legislation,  is  too  plain  to  be  questioned. 
Does,  then,  the  tax  law  of  1862  alter  or  amend  the  provisions 
in  the  charter  of  the  prosecutors,  exempting  them  from  such 
a  tax  as  has  been  assessed  on  them  ?  This  depends  upon  the 
determination  of  the  question,  whether  the  provisions  of  that 
law  are  plainly  inconsistent  with  that  exemption.  It  is  well 
settled,  that  mere  general  words  of  repeal  will  not  affect  the 
provisions  of  private  or  municipal  corporations.  But  this 
law  enacts,  in  very  specific  and  precise  terms,  that  "  all  other 
acts  and  parts  of  acts,  whether  special  or  local  or  otherwise, 
inconsistent  with  the  provisions  of  this  act,  are  hereby  re- 
pealed." 

In  the  case  of  Mechanics  and  Traders  Bank  v.  Bridges  and 
Boyle,  decided  at  June  term,  1862,  of  this  court,  (ante  p.  112,) 
it  was  held,  that  by  virtue  of  this  clause,  all  the  provisions  of 
the  charter  of  Jersey  City  respecting  taxation,  inconsistent 
with  it,  were  thereby  altered  and  made  to  conform  to  the  gen- 
eral tax  law  of  the  state.  And,  in  my  opinion,  this  clause 
shows  a  clear  intention  of  the  legislature  to  alter  the  mode  of 
taxation  before  prescribed  in  all  other  special  acts  they  had 
the  power  to  interfere  with.  Section  7th  of  this  law  (Acts  of 
1862,  p.  348,)  enacts,  "that  all  real  and  personal  estate 
within  this  state,  whether  owned  by  individuals  or  corpora- 
tions, shall  be  liable  to  taxation  in  the  manner,  and  subject 
to  the  exemptions  herein  after  specified."  Section  8th  enacts, 
"  that  all  private  corporations  of  this  state,  except  those 
which  by  virtue  of  any  irrepealable  contract  in  their  char- 
ters, or  other  contracts  with  this  state,  are  expressly  exempt 
from  taxation,  shall  be  and  hereby  are  required  to  be  re- 


372          NEW  JERSEY  SUPREME  COURT. 

State  v.  Miller. 

spectively  assessed  and  taxed."  Section  13th  enacts,  "that 
the  real  estate  of  private  corporations  situate  within  this 
state  shall  be  assessed  to  said  corporation  in  the  township  or 
ward  in  which  it  is  located,  in  the  same  manner  as  the  real 
estate  of  individuals;  and  the  amount  of  such  assessment 
shall  be  deducted  from  the  amount  of  the  capital  stock  and 
surplus  and  funded  debt,  or  of  the  valuable  assets  of  the  said 
oor|X>ration." 

As  these  provisions  are  plainly  inconsistent  with  that  part 
of  the  act  incorporating  the  Morris  and  Essex  Railroad 
Company  which  requires  them,  in  a  certain  contingency,  to 
pay  a  tax  to  the  treasurer  of  the  state,  and  exempts  them 
from  all  other  taxes,  and  as  the  contract  in  this  charter  is 
not  an  irrepealable  contract,  but  is  subject  to  be  abrogated 
or  changed  by  the  legislature,  it  only  remains  to  inquire 
whether  there  is  any  other  contract  with  the  state  expressly 
exempting  them.  No  such  contract  outside  of  the  charter 
is  alleged.  But  it  is  insisted,  for  the  company,  that  the 
words,  "  other  contracts  with  this  state,"  mean  any  other 
contract*  than  irrepealable  contracts  in  their  charters,  and 
therefore  include  re|>ealable  contracts  in  their  charters.  I 
am  not  able,  however,  to  adopt  this  construction,  because  it 
makes  the  two  clauses  of  the  exception  in  effect  contradictory, 
and  rejects  the  word  irrepealable  as  wholly  superfluous  and  un- 
necessary. If  the  legislature  meant  to  except  from  the  opera- 
tion of  this  law  all  corporations  which  are  in  terms  expressly 
exempted  from  taxation,  this  meaning  could  have  been,  and 
doubtlesH  would  have  been  plainly  expressed  in  unambiguous 
terms.  If  the  word  irrepealable  had  been  omitted,  and  the 
language  had  Ix-en,  "  by  virtue  of  any  contract  in  their  char- 
ters, or  other  contracts  with  thi.s  state,"  there  could  be  no 
doubl  of  the  meaning.  But  the  word  irn'j>ealable  has  been 
used  evidently  for  a  pur|x**e,  and  in  my  opinion  the  result 
i.-,  that  the  exception  dm-s  not  apply,  unless  there  is  a  con- 
tract in  an  irrepeaUble  charter,  or  by  some  provision  other 
than  that  contained  in  the  charter  it.self.  The  object  of  the 
exception  evidently  waa  to  avoid  even  the  appearance  of  at- 


NOVEMBER  TERM,  1863.  373 


State  v.  Miller. 


tempting  to  pass  a  law  in  contravention  of  that  provision  of 
the  constitution  of  the  United  States,  which  prohibits  the  legis- 
lature of  a  state  from  impairing  their  contracts,  and  this  ob- 
ject is  fully  obtained  by  the  construction  above  adopted. 

It  was  urged  that  the  reserved  right  to  alter  or  amend 
was  not  meant,  and  cannot  fairly  be  interpreted  to  reserve 
the  right  to  alter  the  prescribed  mode  of  taxation  in  a 
charter  which  not  only  contains  an  express  exemption  from 
any  other  mode,  but  which  gives  to  the  state  a  prospective 
right  to  become  the  owner  of  the  road  and  all  its  appendages, 
upon  the  payment  of  its  appraised  value.  The  answer  how- 
ever is,  that  the  language  of  the  reservation  is  general,  and 
•extends  to  all  the  provisions  of  the  charter;  and  that  the 
stockholders  accepted  and  became  parties  to  a  contract,  one 
of  the  express  terms  of  which  is,  that  the  legislature  may 
alter  or  rescind  it  whenever,  in  their  opinion,  the  public  good 
should  so  require.  If  hereafter  some  mode  of  travel  should 
be  discovered,  so  much  superior  to  the  railroad  as  to  make  it 
for  the  public  good  that  the  dangers  incurred  by  the  road 
should  be  wholly  avoided,  the  charter  may  be  repealed,  and 
the  stock  rendered  valueless.  So  if  the  legislature  have  come 
to  the  conclusion  that  the  public  good  requires  them  to  tax 
the  road  as  other  property  in  the  state  is  taxed,  they  have 
wisely  reserved  the  right  to  do  so ;  and  the  company,  having 
accepted  the  privileges  granted  to  them  subject  to  this  right, 
cannot  complain  if  it  is  exercised.  If  the  legislature  have 
erred  in  judgment,  and  have  dealt  hardly  with  this  or  with 
other  railroads  in  like  circumstances,  as  to  which  we  have 
neither  the  means  nor  the  right  to  form  an  opinion,  the 
remedy  is  not  to  be  sought  from  the  judiciary,  but  from 
those  whose  duty  it  is  to  determine  what,  in  this  matter,  is 
really  for  the  public  good.  Some  stress  was  laid  by  counsel 
on  the  inconvenience  it  was  alleged  will  result  from  subject- 
ing railroads,  which  often  have  real  estate  extending  over 
large  sections  of  the  state,  to  be  taxed  in  each  particular 
township  through  which  they  may  run,  and  from  thus  re- 
quiring all  these  assessments  to  be  ascertained,  and  the  ag- 


374          NEW  JERSEY  SUPREME  COURT. 

Council  of  Newark  v.  Boanl  of  Education  of  Newark. 

gregate  amount  deducted  from  the  capital  stock,  at  the  place 
where  the  principal  office  is  situate.  But  this  agument  is 
not  entitled  to  much  weight.  All  the  inconveniences  on 
both  sides  of  this  question  were  probably  duly  considered  by 
the  framers  of  the  law;  and  it  is  quite  possible  that,  in  these 
times  of  heavy  taxation,  the  inconvenience  of  depriving  many 
townships  of  the  right  to  tax  valuable  real  estate  within 
their  limits,  may  have  been  considered  as  outweighing  the  mere 
difficulty  of  adjusting  the  assessment  upon  the  capital  stock  and 
accumulated  surplus  of  the  company.  In  my  opinion,  tins 
tax  was  rightly  imposed,  and  the  assessment  must  be  affirmed. 

Assessment  affirmed. 

CITED  in  State,  Taintor,  pros.,  \.  Morristown,  4  Vroom  61 ;  State  v.  Dovg- 
lat,  Receiver,  5  Vroom  86;  S.  C.,  5  Vroom  488;  McGavisk,  Collector,  v.  State 
M.  &  E.R.  R.  Co.,  pros.,  5  Vroom  511 ;  State,  M.  &  E.  R.  R.  Co.,  pros.,  v. 
Com'r  of  Railroad  Taxation,  8  Vroom  235  ;  &  C.,  9  Vroom  474. 


THE  MAYOR  AND  COMMON  COUNCIL  OF  THE  CITY  OF 
NEWARK  v.  THE  BOARD  OF  EDUCATION  OF  THE  CITY 
OF  NEWARK. 

The  common  council  of  the  city  of  Newark  have  no  power  to  compel  the 
board  of  education  to  disburse,  under  certain  terms  ami  conditions,  an 
appropriation  for  the  Bti|>|>ort  of  certain  public  schools  not  under  the 
charge  of  the  board  of  education. 


For  the  applicants,  T.  Run  yon. 

The  facts  apj>ear  in  the  opinion  of  the  court. 

VAX  DYKK,  .1.  This  is  an  application  by  the  mayor  and 
common  council  of  the  city  of  Newark,  for  a  iwtncUimus 
against  the  board  of  education  of  that  city,  to  comjM-1  the  said 
board  of  education  to  disburse  the  sum  of  §5000,  appropriated 
by  the  said  common  council  for  the  pur|>osc,  among  certain 
schools  in  the  city.  The  preamble,  resolution,  and  proceed- 
ings of  the  common  council  on  this  subject  are  as  follows,  viz. 

"  Wha-cas  there  are,  and  for  a  long  time  past  have  been 


NOVEMBER  TERM,  1863.  375 

Council  of  Newark  v.  Board  of  Education  of  Newark. 

certain  public  schools  in  this  city,  other  than  the  schools  under 
the  charge  of  the  board  of  education,  which  have  been  and 
are  supported  by  voluntary  contributions,  while  at  the  same 
time  the  parents  of  the  children  educated  therein  are  required 
to  contribute  their  full  proportion  of  taxation  for  the  support 
of  other  public  schools  of  the  city,  without  deriving  any  bene- 
fit therefrom ;  and  whereas  it  is  just  that  provision  should  be 
made  by  the  common. council  for  the  maintenance  of  the  first 
named  schools — therefore 

"  Resolved,  That  the  sum  of  five  thousand  dollars  be  and  it 
is  hereby  especially  appropriated  to  the  board  of  education, 
(and  the  treasurer  of  this  city  is  hereby  directed  to  credit 
said  board  with  the  same  accordingly)  to  be  specifically  and 
exclusively  applied  by  them  pro  rata,  according  to  the  number 
of  children  usually  attending  the  same,  respectively,  to  such 
of  said  public  schools,  not  now  under  their  charge,  as  shall 
apply  for  the  benefit  thereof  within  thirty  days  from  the  time 
of  the  approval  of  this  resolution ;  provided  that  the  board 
shall  have  the  power  to  pass  upon  the  qualification  of  the 
teachers  to  be  employed  in  these  schools,  as  to  moral  and  in- 
tellectual fitness,  irrespective  of  religious  tenets,  leaving  to 
the  persons  having  charge  of  those  schools  the  nomination  of 
teachers,  and  the  selection  of  books,  and  the  appointment  of 
religious  exercises  therein ;  and  that  the  board  shall  also  have 
the  right  to  visit  and  examine  those  schools  in  the  same 
manner  as  other  public  schools  in  this  city;  and  provided 
also,  that  no  application  of  any  part  of  said  money  shall  be 
made  to  any  school,  the  attendance  of  scholars  in  which  shall 
be  less  than  seventy-five,  and  that  every  school  which  shall 
receive  the  benefit  of  the  appropriation  hereby  made  shall  be, 
at  least  for  the  year  ensuing  the  receipt  thereof,  free  to  all 
scholars,  in  the  same  manner  as  the  other  public  schools  of 
this  city." 

Which  resolution  was  duly  approved. 

June  26th,  1863,  the  board  of  education  declined  to  disburse 
the  appropriation  thereby  made  in  accordance  with  the  pro- 
visions and  directions  of  the  resolution,  and  the  common 


376          NEW  JERSEY  SUPREME  COURT. 

Council  of  Newark  v.  Board  of  Education  of  Newark. 

council  by  another  resolution,  passed  July  1st,  1863,  directed 
that  application  be  made  to  this  court  for  a  writ  of  mandamw, 
to  be  directed  to  the  board  of  education,  requiring  them  to 
disburse  the  money  so  appropriated,  according  to  the  terms  of 
the  first  mentioned  resolution. 

What  kind  of  schools  these  are,  for  whose  benefit  this  ap- 
propriation is  made  does  not  appear,  except  that  they  seem 
always  to  have  been  independent  of  any  public  authority,  and 
never  to  have  been  under  the  control  of  the  board  of  education 
of  the  city  of  Newark. 

The  board  of  education  is  willing  to  receive  this  money? 
and  disburse  and  appropriate  it  according  to  its  own  judg- 
ment of  its  duty  in  such  matters,  but  is  not  willing  to  do  so 
according  to  the  terms  and  conditions  imposed  by  the  pre- 
amble and  resolution  of  the  common  council. 

The  charter  of  the  city  of  Newark  creates  and  provides 
for  the  election  of  the  common  council.  It  also  creates  the 
board  of  education,  and  provides  for  the  election  of  its  mem- 
bers. They  are  to  be  elected  in  the  same  manner  and  at  the 
game  times  as  the  members  of  the  common  council.  This 
board  is  by  the  charter  made  a  corporation  of  itself,  and  en- 
dowed with  a  perpetual  succession,  the  right  to  sue  and  be 
sued,  &c.,  as  corporations  usually  are.  All  its  powers  and 
all  its  duties  are  expressly  provided  for  in  the  charter  itself. 
It  derives  no  powe»,  and  is  .subject  to  no  control  from  the 
common  council.  It  is  quite  as  independent  of  it  as  the 
council  is  of  the  l>oard  ;  and  all  the  connection  which  there  is 
between  them,  and  all  that  they  have  to  do  with  each  other 
is,  that  it  is  made  the  duty  of  the  board  of  education  to 
transmit  to  common  counril,  annually,  an  estimate  of  the 
amount  of  moneys  necessary  for  the  support  of  public  schools 
in  the  city  during  the  year,  specifying  particularly  the 
several  sums  required  for  carh  branch  of  expenditure ;  and 
the  common  council  are  then  to  determine,  by  resolution, 
lit'  amount  of  moneys  to  !•••  appropriated  to  the  public 
whools  during  the  year,  and  raise  by  tax  the  money  so  ap- 
propriated ;  and  the  board  of  education  is  to  cx|>cnd  the 


NOVEMBER  TERM,  1863.  377 

Council  of  Newark  v.  Board  of  Education  of  Newark. 

money  so  raised  for  the  support  of  the  public  schools  in  the 
city,  according  to  the  provisions  of  the  charter.  The  board 
of  education  is  also  required  to  make  to  the  common  council 
an  annual  report  of  the  number  and  condition  of  the  schools, 
and  what  has  been  done  in  and  for  them  during  the  year. 
But  in  the  disbursement  and  distribution  of  the  money 
raised  the  board  of  education  are  given  the  exclusive  man- 
agement and  control,  and  are  in  no  way  subject  to  the  di- 
rection or  interference  of  the  common  council,  except  that  it 
cannot  purchase  real  estate  without  its  concurrence. 

Among  the  powers  expressly  conferred  on  the  board  of 
education,  is  the  selection  and  employment  of  teachers,  and 
to  provide  school  books,  school  furniture,  and  school  libra- 
ries for  the  schools.  But  by  the  resolution  of  the  common 
council,  the  board  of  education  is  to  select  neither  the  teach- 
ers nor  the  books  to  be  used  in  the  schools,  nor  to  interfere 
with  the  religious  exercises  therein.  All  these  things  are  to 
be  left  to  the  determination  of  other  persons,  having  the  man- 
agement of  the  schools  referred  to  in  the  resolution.  We  are 
not  informed  of  the  character  of  these  schools,  who  are  to 
teach  them,  or  what  is  to  be  taught  in  them,  and  I  can  see  no 
reason  why  they  may  not  be  Mahomedan,  Mormon,  or  Chinese. 
And  if  the  common  council  have  the  power  claimed,  and  if 
we  order  this  mandamus,  the  board  of  education  may  be  com- 
pelled to  become  the  protectors  and  guardians  of  schools,  for 
the  teaching  of  the  exalted  and  bewildering  delights  of  the 
koran,  the  inexpressible  blessings  of  an  indefinite  number  of 
wives,  or  the  sublime  and  idolized  philosophy  of  Confucius. 
I  do  not  think  that  the  board  of  education  is  bound  to  do  any 
such  thing,  or  that  the  common  council  of  the  city  have  any 
such  power  over  them. 

I  think,  therefore,  that  the  mandamus  applied  for  should, 
not  be  ordered. 

Mandamus  refused- 


378          NEW  JERSEY  SUPREME  COURT. 


Read  v.  Barker. 


JOSEPH  M.  READ  v.  THOMAS  BARKER  AND  CHARLES 
BARKER. 

1.  Bead,  the  defendant,  leased  to  Barker  and  Barker,  the  plaintiffs,  a 
mill  and  water  power,  and  covenanted  with  them  for  the  use  of  the 
water  in  as  full  and  ample  a  manner  a-  he  had  enjoyed  it.     The  plain- 
tiffs alleging  that  the  defendant  had  placed  a  trunk  in  the  pond  in  such 
manner  as  to  carry  off' the  water  of  a  certain  spring,  which  was  one  of 
the  principal  tributaries  to  the  bond,  brought  suit  to  recover  damages. 
Held,  that  the  opinion  of  millers  and  millwrights,  whether  they  be 
called  experts  or  practical  men,  as  to  the  quantity  of  grain  the  mill 
was  capable  of  grinding  and  the  value  of  the  water  for  milling  pur- 
poses, together  with  the  statement  of  the  method  used  for  measuring 
or  weighing,  was  competent  evidence. 

2.  When  a  witness,  who  has  been  in  attendance  during  the  progress  of 
a  trial,  fails  to  appear  when  called,  the  court  will  not  reverse  the  judg- 
ment for  that  cause,  no  motion  having  been  made  to  postpone  the 
case  or  procure  the  testimony  of  the  witness  de  bene  esse;  and  espe- 
cially when  it  appears  that  the  evidence  of  the  witness,  had  he  been 
present,  would  have  been  only  cumulative. 


On  certiorari  to  the  Warren  Pleas  in  case  of  appeal  from  a 
justice's  court. 

For  plaintiff  in  certiorari,  J,  G.  Shipman. 
For  defendants,  D.  A.  Depue. 

II AINKS,  J.  This  was  an  action  of  covenant,  tried  before 
the  court  and  a  jury  of  the  county  of  Warren,  upon  an  ap- 
peal. The  defendants  in  ctrtiorari,  who  were  plaintiffs  l>elow, 
complained  that  the  defendant  below  had  leased  to  them  a 
mill  and  water  power,  and  covenanted  with  them  for  the  uso 
of  the  water  in  as  full  and  ample  a  manner  as  he  had  held 
and  enjoyed  it,  and  that  he  did  not  keep  his  covenant,  but 
violated  it  by  diverting  a  part  of  the  water  to  their  injury. 
The  particular  diversion  complained  of  arose  from  the  de- 
fendants having  placed  a  trunk  in  the  pond  in  such  a  manner 
ai  to  carry  off  the  water  of  a  certain  spring,  which  was  one 
of  its  principal  tributaries.  A  verdict  and  judgment  having 


NOVEMBER  TERM,  1863.  379 

Read  v.  Barker. 

been  rendered  for  the  plaintiffs  below,  the  defendant  seeks 
to  have  the  judgment  reversed.  One  of  the  reasons  for  re- 
versal assigned  is,  that  the  declaration  is  defective  and  in- 
sufficient. The  declaration,  although  not  very  artistically 
drawn,  sets  forth  with  reasonable  certainty  the  cause  of  com- 
plaint, and  is  substantially  correct,  and  sufficient  in  a  court 
for  the  trial  of  small  causes.  The  defects,  if  any,  are  only  of 
form,  such  as  were  formerly  the  subject  of  special  demurrer 
in  a  common  law  court,  and  such  as,  under  the  present  prac- 
tice, would  be  amended  on  motion  at  any  time  during  the 
progress  of  the  cause.  Another  reason  assigned  is  the  ad- 
mission of  illegal  evidence.  The  court  received  the  evidence 
of  witnesses  in  regard  to  the  measurement  of  the  water  dis- 
charged from  the  trunk,  on  the  morning  of  the  trial  before 
the  justice.  This  was  objected  to  on  the  ground  that  the 
plaintiifs  were  bound  to  make  out  a  cause  of  action  existing 
before  the  commencement  of  their  suit.  But  it  did  not  fol- 
low that  they  had  failed  to  show  a  cause  of  action,  because 
they  gave  evidence  of  the  quantity  of  water  subsequently 
discharged.  They  had  shown  the  fact  of  the  placing  the 
trunk,  and  the  diversion  of  the  water  of  the  spring.  The 
evidence  received  was  one  of  the  means  of  showing  the 
quantity  of  water  lost,  and  the  extent  of  the  injury.  The 
jury  had  for  their  consideration  the  time  when  the  measure- 
ment was  made,  and  the  condition  of  the  spring  at  that  time, 
and  at  several  times  before  the  commencement  of  the  action, 
and,  by  comparison,  could  judge  of  the  loss.  It  was  not 
conclusive  evidence  of  the  amount  of  the  water  diverted,  but 
it  was  competent  as  tending  to  show  it.  Again,  it  is  said 
that  illegal  evidence  was  admitted,  in  the  opinions  expressed 
by  the  witnesses  of  the  quantity  of  grain  which  the  mill  was 
capable  of  grinding  and  of  the  value  of  the  water  for  milling 
purposes.  The  witnesses  on  this  subject  were  millers  and 
millwrights,  experienced  in  the  construction  of  mills  and  in 
their  use.  The  extent  of  their  knowledge  was  shown  to  the 
jury,  and  their  judgment  and  opinions  as  expressed,  whether 
they  be  called  experts  or  practical  men  acquainted  with  the 


380          NEW  JERSEY  SUPREME  COURT. 


Read  v.  Barker. 


subject,  were  competent.  The  value  of  commodities  is  usu- 
ally, in  part  at  least,  a  matter  of  opinion,  and  those  ac- 
quainted with  an  article  and  its  value  may  express  their 
judgment,  their  belief,  or  opinion,  as  to  quantity  or  the  sub- 
ject of  measurement  or  weight ;  and  it  is  proper  for  witnesses, 
in  connection  with  the  statement  of  the  method  used  for 
measuring  or  weighing,  to  express  their  opinions  of  its  accu- 
racy and  their  estimate  of  the  quantity.  There  was  other 
evidence  received  against  objection,  but  I  cannot  see  that  the 
court  violated  any  rule  of  evidence,  or  committed  any  error 
by  its  admission.  During  the  progress  of  the  trial,  a  witness, 
who  had  been  in  attendance  on  the  part  of  the  defendant, 
failed  to  appear  on  the  morning  to  which  the  court  had  been 
adjourned  ;  and  this  is  alleged  as  a  surprise  upon  the  defend- 
ant and  good  ground  for  setting  aside  a  verdict  in  a  court  of 
common  law,  and  for  a  reversal  of  the  judgment  in  this  case. 
When  the  absence  of  the  witness  was  discovered,  no  motion 
was  made  to  postpone  the  cause  or  to  procure  the  testimony 
of  the  witness  de  bene  ease.  The  evidence  which  that  witness 
would  have  given,  had  he  been  present,  is  shown  by  affidavit, 
and  it  is  manifestly  only  cumulative.  Other  witnesses  had 
testified  to  the  same  matter,  and  covered  all  of  the  ground  as 
fully  as  the  absent  witness  could  have  done.  No  prejudice 
arose  from  his  absence,  and  this  would  have  been  no  reason 
for  setting  aside  a  verdict,  nor  is  it  a  sufficient  ground  for  the 
reversal  of  the  judgment. 

The  judgment  of  the  Court  of  Common  Pleas  must  be 
affirmed. 

ELMER,  J.,  concurred. 

Judgment  affirmed. 


NOVEMBER  TERM,  1863.  381 


Bond  v.  Cox. 


JOSEPH  W.  BOND  ET  AL.  v.  EDWAKD  W.  COX. 

1.  On  an  application  for  the  benefit  of  the  insolvent  laws,  creditors  may 
examine  witnesses  or  offer  evidence  on  the  subject  of  the  arrest  of  the 
debtor. 

2.  Opposing  creditors,  or  their  counsel,  have  a  right  to  propound  inter- 
rogatories to  the  debtor  in  respect  to  his  giving  an  inventory  to  the 
officer  who  arrested  him,  and  it  is  the  duty  of  the  court  to  allow  all 
interrogatories  that  are  legal  and  pertinent. 

3.  In  order  to  give  the  court  jurisdiction  of  such  application,  the  debtor, 
at  the  time  of  giving  bond,  should  be  under  arrest  or  held  in  custody. 


On  the  3d  May,  1862,  Cox  was  arrested  by  the  sheriff  of 
the  county  of  Burlington,  upon  a  writ  of  ca.  sa.,  issued  out 
of  the  Circuit  Court  of  said  county,  at  the  suit  of  Joseph  W. 
Bond  et  al.  On  the  16th  September,  of  same  year,  lie  filed 
a  petition  to  be  discharged  under  the  act  abolishing  imprison- 
ment for  debt  in  certain  cases.  The  application  came  on  to 
be  heard  before  the  Common  Pleas  of  said  county  on  the  2.5th 
November,  at  a  special  term  of  the  court;  when,  after  the 
hearing  the  defendant  and  the  plaintiffs  as  opposing  creditors, 
the  defendant  was  discharged. 

A  certiorari  was  sued  out  by  the  plaintiffs  to  remove  the 
proceedings  into  this  court,  and  a  state  of  the  case,  signed 
by  the  judges  of  the  Pleas,  has  been  returned  with  the  writ, 
which  is  as  follows :  "  This  cause  came  on  to  be  heard,"  &c., 
(omitting  the  formal  part). 

"  The  counsel  for  the  applicant  offered  in  evidence  the 
papers  filed  in  the  case  and  the  proceedings  of  the  court  at 
the  term  of  September  then  last  past,  and  proved,  by  affida- 
vit, the  publication  of  the  notice  of  this  application  on  the 
plaintiffs  and  the  non-residence  of  the  other  creditors.  The 
applicant  was  then  sworn,  and  in  answer  to  interrogatories 
administered  -by  the  clerk  of  said  court,  testified  :  that  be- 
fore the  16th  September,  1862,  and  subsequent  to  the  then 
next  preceding  term  of  this  court,  he  was  arrested  for  debt 
or  damages,  and  gave  bond  pursuant  to  the  act  in  such  case 

VOL.  i.  2  A 


382         NEW  JERSEY  SUPREME  CX3URT. 

Bond  v.  Cox. 

made  and  provided ;  that  his  arrest  was  compulsory ;  that 
the  account  annexed  to  his  petition  contains  a  fair  and  true 
account  of  all  his  estate,  both  real  and  personal,  either  in 
possession,  remainder,  or  reversion ;  and  also  a  just  and  true 
inventory  of  all  his  deeds,  bonds,  notes,  books  of  account, 
vouchers,  and  specialties  whatever,  with  the  sum  due  thereon ; 
and  a  list  of  all  his  creditors,  with  the  amount  of  debts  due 
to  them  and  owing,  and  that  he  had  advertised  the  hearing, 
and  given  notice  thereof  to  his  several  creditors,  as  the  laws 
of  New  Jersey  direct. 

"And  on  a  cross-examination  by  the  counsel  of  the  op- 
jK>sing  creditors,  the  said  applicant  further  testified,  that  he 
was  arrested  on  Saturday  afternoon,  the  afternoon  of  the 
day  that  the  hearing  was  had  Ixjfore  Judge  Vredenburgh ; 
that  he  was  arrested  by  sheriff  Leeds,  at  the  store  kept  by 
himself,  and  told  the  sheriff  that  he  would  come  up  to  the 
jail ;  that  he  afterwards,  about  seven  o'clock,  went  up  to  the 
jail,  and  surrendered  himself  to  the  custody  of  the  sheriff; 
that  he  was  released  from  the  custody  of  the  sheriff  that 
evening;  was  not  looked  up,  was  not  detained;  and  that  Mr. 
Levis  and  Mr.  C'onover  were  there  with  him ;  that  he  was 
allowed  by  the  .-heritf  to  go  away  that  evening;  that  the 
sheriff  was  present  at  the  time  he  left,  and  that  he  then  went 
down  to  his  place  of  business;  that  he  was  free  on  the  next 
day;  that  the  following  Monday  he  proceeded  and  gave  bond 
to  the  sheriff,  and  that  Samuel  A.  Dobbins  and  Benjamin  F. 
Shreve  were  hi*  bondsmen  ;  which  bond  was  then  and  there 
produced  and  shown,  U-aring  date  the  fifth  day  of  May,  A. 
D.  eighteen  hundred  and  sixty-two. 

"The  answers  given  by  the  applicant  on  the  said  examina- 
tion and  cross-exam  ination  were  reduced  to  writing  by  the 
clerk  of  the  court  under  the  direction  of  the  court. 

"  The  counsel  of  the  opjHjsing  creditors  then  asked  leave  of 
the  court  to  question  the  applicant  in  regard  to  his  giving 
an  inventor)* ;  which  was  objected  to  by  the  opjxwing  counsel ; 
and  the  court,  after  hearing  argument,  refused  to  allow  the 
counsel  of  the  opposing  creditors  to  ask  the  applicant  any 


NOVEMBER  TERM,  1863.  383 

Bond  v.  Cox. 

•questions  in  regard  to  the  inventory,  and  the  counsel  for  the 
opposing  creditors  then  took  exceptions  to  such  decision  as 
erroneous. 

"  The  counsel  of  the  opposing  creditors  then  asked  leave  of 
the  court  to  call  the  sheriff  who  made  the  arrest,  to  interro- 
gate him  in  regard  to  the  facts  of  the  arrest  of  said  applicant, 
and  of  his  subsequent  release,  and  the  time  and  manner  of 
giving  the  said  bond  and  alleged  inventory,  which  was  also 
•denied  by  the  court ;  and  the  counsel  for  the  opposing  credi- 
tors then  excepted  to  such  decision  as  erroneous. 

"  The  counsel  for  the  applicant  then  moved  to  discharge  the 
prisoner,  to  which  the  counsel  for  the  opposing  creditors  ob- 
jected, for  two  reasons : 

"  First,  because  there  was  no  such  inventory,  as  required 
by  the  statute,  annexed  to  the  bond  given  to  the  sheriff, 
which  said  inventory  was  in  the  words  following,  to  wit: 
"Inventory  of  Edward  A.  Cox,  of  Mount  Holly,  in  the 
county  of  Burlington,  made  pursuant  to  the  second  section 
of  the  act  entitled,  '-an  act  abolishing  imprisonment  on  civil 
process  in  certain  cases,'  this  fifth  day  of  May,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  sixty -two.  No 
goods,  chattels,  rights,  credits,  lands,  tenements,  or  real 
estate  (save  only  the  goods  set  apart  by  the  sheriff  of  the 
county  of  Burlington  for  the  use  of  a  debtor  having  a  family, 
according  to  law).  Second,  because,  at  the  time  of  the  giving 
of  the  bond  to  the  sheriff,  (as  appeared  by  the  testimony  of 
the  applicant)  the  said  applicant  was  not  under  the  arrest  of, 
or  in  the  custody  of  the  sheriff,  and  therefore  was  not  enti- 
tled to  give  bond  or  make  application  for  this  discharge ;  both 
of  which  objections  were  overruled  by  the  court,  and  the 
counsel  for  the  opposing  creditor  then  excepted  to  such  deci- 
sion as  erroneous. 

"The  court  then  proceeded,  and  appointed  Franklin  B. 
Levis  as  assignee,  to  whom  said  applicant  forthwith  executed 
an  assignment  of  all  his  estate  whatsoever,  real  and  personal, 
wheresoever  and  whatsoever,  and  all  deeds  and  vouchers 
whatsoever  relating  to  the  same.  Whereupon  the  said  court 


384          NEW  JERSEY  SUPREME  COURT. 


Bond  v.  Cox. 


did  order  and  direct  the  said  Edward  B.  Cox  to  be  discharged 
from  the  custody  of  the  sheriff  of  the  county  of  Burlington  on 
account  of  any  debt  by  him  previously  contracted." 

The  plaintiffs  assigned,  as  reasons  for  setting  aside  the 
judgment  and  proceedings  of  the  Common  Pleas,  that  the 
court  erred  in  refusing  to  allow  them  to  examine  the  applicant 
in  regard  to  his  giving  an  inventory,  and  to  offer  any  evidence 
in  regard  to  the  arrest  of  the  applicant,  his  subsequent  release, 
and  the  time  and  manner  of  his  giving  bond  and  security ; 
and  because  there  was  no  legal  inventory  given  to  the  officer, 
and  the  applicant  was  not  under  arrest  at  the  time  of  giving 
the  bond. 

For  the  plaintiff  in  certiorari,  F.  Voorhees. 
For  the  defendant,  E.  M&ritt. 

The  opinion  of  the  court  was  delivered  by 

HAINES,  J.  Edward  A.  Cox,  having  been  discharged,  as 
an  insolvent  debtor,  by  the  Court  of  Common  Pleas  of  the 
county  of  Burlington,  the  plaintiffs  in  certiorarit  being 
creditors,  question  the  legality  of  the  proceedings.  One  of 
the  reasons  assigned  for  reversing  the  judgment  and  setting 
aside  the  proceedings  is,  that  the  creditors  were  not  allowed 
by  the  court  to  examine  witnesses,  or  to  offer  any  evidence 
on  the  subject  of  the  arrest  of  the  debtor.  On  such  hearing, 
witnesses  are  to  l>e  examined  to  prove  the  service  and  pub- 
lication of  the  notices  of  the  application  and  all  preliminary- 
questions,  that  the  court  may  determine  whether  the  appli- 
cant is  in  a  condition  to  l>e  heard ;  his  creditors  having  had 
no  opportunity  of  being  present  to  make  their  objections. 
One  of  the  requirement*  to  the  condition  of  the  creditor  to 
be  heard  i»,  his  being  under  arrest  or  in  custody  at  the  time 
of  giving  Ix »nd  conditioned  for  his  making  application  for  his 
discharge.  He  must  show,  to  the  satisfaction  of  the  court, 
that  he  has  a  right  to  make  his  application ;  that  he  was 
either  in  actual  custody  under  the  act  of  1795,  and  its  sup- 


NOVEMBER  TERM,  1863.  385 


Bond  v.  Cox. 


piemen ts,  or  in  the  constructive  confinement  of  subsequent 
acts.  He  is  competent  to  prove  his  arrest  or  confinement, 
but  his  answers  to  interrogatories  on  that  question  are  not 
conclusive.  The  court  may,  if  it  see  fit,  require  additional 
evidence,  or  the  creditors  may  controvert  his  statement. 
Hamilton  v.  Chevattier,  3  Harrison's  It.  434.  In  Wallace  v. 
Coil,  it  was  by  this  court,  after  full  argument,  held  that  evi- 
dence offered  by  the  opposing  creditor,  to  show  that  the  cause 
of  imprisonment  was  such  that  the  debtor  was  not  entitled  to 
his  discharge,  was  properly  received.  In  this  case  the  court 
erred  in  not  permitting  the  creditors  to  introduce  proof  on  that 
subject. 

2.  Another  reason  assigned  is,  that  the  court  refused  to 
allow  the  opposing  creditors,  or  their  counsel,  to  ask  the 
debtor  any  question  in  respect  to  his  giving  an  inventory  to 
the  officer  who  arrested  him.  The  act  of  February,  1830, 
re-enacted  15th  April,  1846,  Nix.  Dig.  331,*  prescribes  the 
terms  on  which  a  person  arrested  or  held  in  custody,  in  any 
civil  action,  may  be  discharged  from  such  arrest  or  custody. 
One  of  those  terms  is  the  delivery  to  the  officer  of  a  true 
and  perfect  inventory,  under  oath,  of  all  his  property,  rights, 
and  effects.  The  delivery  of  the  inventory  was  held  by  the 
court,  in  Davis  v.  Hendrickson,  3  Green's  R.  481,  to  be  ne- 
cessary to  place  the  debtor  in  a  condition  to  make  application 
for  his  discharge  as  an  insolvent  debtor.  It  is  only  on  the 
delivery  of  the  bond  mentioned  in  the  statute,  together  with 
the  inventory,  that  the  officer  had  a  right  to  discharge  him 
from  custody.  It  was  proper,  therefore,  that  the  creditors 
should  have  been  permitted  to  inquire  respecting  this  first 
preliminary  step  in  the  proceedings  to  obtain  his  discharge, 
and  the  refusal  was  an  error  in  the  court  below.  On  the 
argument  here,  it  was  insisted,  and  it  seems  to  have  been 
made  a  point  before  the  Court  of  Common  Pleas,  that  the 
creditors  have  de  jure  no  power  of  examination ;  that  they 
can  examine  "only  by  permission  of  the  court.  The  statute 
provides  for  the  examination  of  the  debtor  on  interrogatories 
proposed  by  the  court;  but  it  does  not  contemplate  that  the 

*Rev.,  p.  857. 


386          NEW  JERSEY  SUPREME  COURT. 

Bond  v.  Cox. 

court  will,  of  itself,  dictate  or  write  the  interrogatories.  It 
may,  and  usually  does  act  through  its  officers,  the  clerk,  or 
counsel.  The  statute  gives  power  to  control  the  course  of  ex- 
amination, and  to  prevent  illegal  or  irrelevant  questions,  and 
to  exercise  therein  a  legal,  and  not  an  arbitrary  discretion. 
But  it  is  the  right  of  the  opposing  creditor  to  propound  inter- 
rogatories, and  the  duty  of  the  court  to  allow  all  that  are 
legal  and  pertinent  to  be  put  to  the  debtor.  The  creditor  is  a 
party  to  the  proceedings,  entitled  to  be  heard,  and  to  make  a 
ground  for  his  objections  through  interrogatories.  The  cred- 
itor stands  somewhat  in  the  relation  of  a  witness,  to  make  his 
case  and  show  his  right  to  a  discharge;  the  interrogatories 
proposed  by  the  creditors  are  in  the  nature  of  a  cross-ex- 
amination, and  if  legal  and  pertinent,  should  not  be  over- 
ruled. 

3.  Another  reason  for  reversal  is,  that  the  debtor,  at  the 
time  of  giving  bond  conditioned  for  his  appearance,  and  ap- 
plication for  the  benefit  of  the  insolvent  laws,  was  not  under 
arrest  or  held  in  custody.  The  court  can  entertain  no  juris- 
diction of  such  an  application,  unless  it  is  alleged  in  the 
petition,  and  shown  on  the  examination  of  the  debtor,  that 
he  was  under  arrest  or  held  in  custody  at  the  time  of  giving 
bond.  The  lx>nd  and  inventory,  so  given  are  substituted  for 
the  actual  confinement  within  the  four  walls,  and  for  the  prison 
limits  provided  by  statute.  This  requisite  is  as  indispensable 
to  the  creditor,  to  apply  for  a  final  discharge  in  the  one  ease 
as  in  the  other,  lie  must  either  be  in  actual  confinement 
within  the  walls  of  the  prison,  or  in  the  prison  limits,  or  under 
the  obligation  of  the  bond  required  by  the  act.  By  the  5th 
section  of  the  act  for  the  relief  of  persons  imprisoned  on  civil 
process,  Nix.  Dig.  3o2,*  it  is  made  the  duty  of  the  court  at 
the  time  of  the  hearing,  to  examine  the  debtor  touching  his 
confinement,  whether  his  imprisonment  was  compulsory  or 
Voluntary  ;  and  if  it  apjx*ar  that  his  confinement  was  not 
compulsory,  to  stay  all  further  proceedings  in  the  case.  The 
debtor  must,  therefore,  not  only  have  been  under  arrest  or 
in  custody,  but  under  compulsory  confinement.  By  the  state 
•Ret.,  p.  41K>,  $  10. 


NOVEMBER  TERM,  1863.  387 

Cook  v.  Smith. 

of  the  case,  it  appears  that  the  debtor  was  arrested  on  a  writ 
of  capais  ad  satisfaoiendum  on  the  third  day  of  May,  1862, 
and  was  in  the  custody  of  the  sheriff  at  the  jail,  but  not  locked 
up ;  that  he  was  released  from  the  custody  of  the  sheriff  that 
evening,  and  by  him  allowed  to  go  at  large ;  and  that,  on  the 
fifth  of  May,  he  executed  and  delivered  to  the  sheriff  the 
bond  conditioned  for  his  application  for  a  discharge.  The 
debtor  clearly  was  not  in  custody  nor  under  the  control  of 
the  officer  at  the  time  of  giving  the  bond.  The  sheriff,  by 
suffering  him  to  go  at  large,  was  guilty  of  a  voluntary  escape, 
and  had  no  power  to  re-arrest  him.  If,  as  was  suggested 
on  the  argument,  the  right  to  re-arrest  was  personal  with 
the  debtor,  and  that  with  his  assent  the  sheriff  might  again 
take  him  into  custody,  then  such  consent  made  the  confine- 
ment voluntary,  and  not  compulsory,  and  the  court  was  bound 
to  stay  all  further  proceedings  in  the  case. 

The  discharge  of  the  debtor  under  such  circumstances  was 
erroneous,  and  the  judgment  and  proceedings  of  the  Court  of 
Common  Pleas  must  be  reversed  and  set  aside. 


SIMEON  COOK,  EXECUTOR  OF  PETER  SMITH,  DECEASED, 
v.  DAVID  SMITH,  SURVIVOR  OF  GARRET  SMITH,  DE- 
CEASED. 

1.  Where  a  witness  testifies  that  he  has  often  seen  the  plaintiff  write,  and 
that  he  takes  his  signature  to  a  receipt  offered  in  evidence  to  be  genu- 
ine, and  the  court  admits  the  receipt  to  go  to  the  jury,  this  is  prima 
jacie  evidence  of  the  genuineness  of  the  receipt ;  and  if,  without  any 
further  evidence  upon  the  subject,  the  jury  regard  the  receipt  as  a  for- 
gery, the  verdict  will  be  set  aside  as  contrary  to  the  evidence. 

2.  The  seventh  section  of  the  act  of  1854,  fiix.  Dig.  851,  assessing  the 
tax  on  the  mortgagor,  where  the  mortgagee  resides  out  of  the  town- 
ship, is  not  unconstitutional  as  impairing  the  obligation  of  contracts, 
and  the  oath  of  the  collectors  and  their  receipts  are  prima  fade  evi- 
dence of  the  proper  payment  of  such  tax. 

This   action  was  brought  to  recover  the  amount  due  on 
three  several  bonds,  given  by  Garret  Smith  and  David  Smith 


388          NEW  JERSEY  SUPREME  COURT. 

Cook  v.  Smith. 

to  Petrr  Smith,  in  his  lifetime,  each  for  the  payment  of  one 
thousand  dollars.  The  defendant  pleaded  payment,  and  gave 
notice  of  set-off.  On  the  trial  much  evidence  was  offered  to 
.show  partial  payments  at  different  times,  and  also  to  show  the 
transactions  and  dealings  of  the  parties  in  reference  to  the 
bonds.  The  jury  rendered  a  verdict  for  the  plaintiff  for  the 
sum  of  $3454.73.  A  rule  to  show  cause  why  this  verdict 
should  not  be  set  aside  was  granted,  on  application  of  the  de- 
fendant, and  was  argued,  in  the  term  of  June  last,  before 
VKEDEXBUKGH,  OGDEX  and  VAN  DYKE,  Justices,  upon  a 
state  of  the  case  agreed  on  by  counsel. 

As  the  grounds  of  this  application  and  the  principal  facts 
relating  thereto  are  sufficiently  shown  in  the  opinion  of  the 
court,  it  is  deemed  unnecessary  to  insert  the  case  itself,  which 
is  of  great  length,  and  embraces  many  matters  not  brought 
in  question  on  the  argument  of  this  rule. 

Attorney  for  the  plaintiff,  P.  B.  Kennedy. 
Attorney  for  the  defendant,  J.  G.  Shipment. 

The  opinion  of  the  court  was  delivered  by 

VREDENBUBGH,  J.  This  was  an  action  of  debt  brought 
in  this  court  on  three  several  bonds,  dated  the  1st  July,  1847, 
for  $1000  each,  given  by  David  and  Garret  Smith  to  Peter 
Smith,  payable  1st  April,  1851,  with  interest  annually  from 
1st  April,  1847. 

The  pleas  were  payment  to  Peter  Smith,  in  his  lifetime, 
and  to  the  executors  since  his  death,  and  notice  of  offset. 
The  cause  was  tried  at  the  Warren  Circuit,  Deceinl>er  term, 
1862,  and  a  verdict  for  tln>  plaintiff  for  $3454.73.  The  de- 
fendant now  moves  that  the  verdict  be  set  aside,  as  being  too 
large. 

It  ap]>oarM,  by  the  ease,  that  one  Peter  Smith,  the  father 
of  the  defendant  and  of  the  plaintiff's  testator,  on  the  1st  of 
April,  1847,  owned  a  farm  an.l  divers  |>er*onal  projH-rty  in 
the  t<. \\ii-liiu  of  Oxford,  in  said  county  of  Warren,  and  then 


NOVEMBER  TERM,  1863.  389 


Cook  v.  Smith. 


sold  it  to  his  sons,  Garret  and  David,  for  $8000,  and  $60  per 
year  paid  unto  the  son,  Aaron  Smith,  during  the  life  of  his 
father.  Four  thousand  dollars  of  the  said  purchase  money 
was  paid  for,  by  the  work  previously  done  by  the  defendants 
for  their  said  father,  and  the  remaining  $4000  was  paid  for, 
by  four  several  bonds  for  $1000  each,  three  of  them  payable 
to  the  father,  with  interest,  and  the  other,  the  interest  payable 
to  the  father  during  his  lifetime,  and  the  principal  payable  to 
Aaron  at  the  death  of  the  father. 

Peter  Smith,  the  father,  died  on  the  llth  October,  1860. 
The  interest  on  the  fourth  bond,  payable  to  Aaron  Smith  at 
the  death  of  his  father,  was  fully  paid  u^  by  the  defendants. 

The  questions  in  controversy  therefore  relate  to  the  other 
three  bonds,  and  the  interest  due  on  them. 

The  controversy  is  about  the  payments  made  on  these  three 
bonds  and  the  offsets  properly  allowable  against  them. 

The  plaintiif  claims  that,  on  the  1st  April,  1859,  there  was 
due,  for  principal  on  these  three  bonds,  $2800,  which,  with 
the  interest,  $654.73,  from  that  time  until  the  26th  February, 
1863,  the  time  allowed  by  the  jury,  make  the  $3454.73  al- 
lowed by  the  jury.  The  defendant,  on  his  side,  insists  that 
there  was  not  due  for  principal  on  these  three  bonds,  on  the 
1st  April,  1859,  the  said  sum  of  $2800,  but  some  lesser  sum. 
It  appears  that,  on  the  14th  May,  1859,  Peter  Smith  and 
Garret  and  David  Smith  got  together,  and  looked  over  their 
accounts,  and  upon  that  occasion  Peter  Smith  made  the  fol- 
lowing endorsement  on  each  of  the  three  bonds  :  "  Rec'd  May 
14,  1859,  on  the  within  bond  the  interest  thereon  in  full  to 
the  1st  day  of  April  last,"  and  also  a  receipt  on  one  of  the 
bonds  for  $200  on  the  principal,  as  of  the  1st  April,  1859. 
This  of  course  left  due  on  the  three  bonds  $2800,  of  principal, 
on  the  1st  April,  1859,  which  the  plaintiff  claims  to  be  the 
true  amount,  and  which  the  jury  have  allowed. 

The  controversy  is  whether  this  $2800,  due  as  principal 
on  the  1st  April,  1859,  is  the  true  amount.  The  interest  on 
the  four  bonds,  from  the  1st  April,  1847,  to  the  1st  April, 
1859,  twelve  years,  is  $2880.  On  the  1st  April,  1859,  Peter 


390          XEW  JERSEY  SUPREME  COURT. 


Cook  v.  Smith. 


Smith  received,  as  appears  by  Exhibit  No.  4,  $3080  on  the 
bonds,  which  paid  up  the  interest  on  the  four  bonds  and  $200 
on  one  of  the  three  bonds  no\v  in  suit.  This  Exhibit  No.  4 
contains  the  items  which  make  up  the  said  $3080.  The 
plaintiff  contends  that  these  are  all  the  items  that  the  defend- 
ant is  entitled  to.  The  defendant  contends  that  they  are  not, 
but  sets  up  that,  besides  these,  he  should  be  credited  : 

First.  With  a  receipt  of  $240,  dated  April  2d,  1851,  which 
he  alleges  was  not  brought  into  the  account. 

Second.  The  defendant  claims  that  the  payments  over,  are 
the  amounts  of  interest  due  at  the  time  they  were  paid,  and 
which  should,  to  that  extent,  be  deducted  from  the  principal. 

Third.  The  defendant  claims  that  he  should  be  credited 
with  his  lxx>k  account,  which  has  not  been  done. 

Fourtli.  The  defendant  alleges  that  he  paid  the  taxes  on 
the  bond,  which  should  be  credited. 

First.  As  to  the  $240  receipt,  the  receipt  is  in  evidence. 
It  is  dated  April  2d,  1851,  and  reads  as  follows: 

$240.  Received  from  David  and  Garret  Smith  two  hun- 
dred and  forty  dollars,  interest  on  account  of  bonds  I  hold 
against  them."  Signed  "  Peter  Smith." 

The  plaintiff  sets  up,  as  to  this  receipt — first,  that  it  is  a 
forgery,  and  uj>on  this  point  the  evidence  is  that  of  William 
P.  Robeson,  who  testifies :  "  I  have  often  seen  Peter  Smith 
write,  and  take  the  signature  to  that  receipt  to  be  genuine. 
If  the  signature  to  this  receipt  had  come  to  me  in  the  course 
of  business,  I  would  not  have  hesitated  to  take  it,  from  the 
general  ap|K?arancc  of  it."  Whereupon  the  court  admitted 
the  paj>er.  This  is  all  the  evidence  there  was  at  the  trial, 
ujx>n  the  genuineness  of  the  receipt.  If  the  jury  rejected  the 
receipt  on  the  ground  of  its  genuineness,  their  verdict  is 
against  the  weight  of  evidence.  It  was  proved  in  the  ordi- 
nary way.  It  was  not  necessary  for  the  defendant  to  prove 
more  until  it  was  to  some  extent  irn]>cached.  If  the  jury  re- 
jecti-d  it  as  a  forgery,  they  must  have  acted  on  evidence  not 
sworn  to  Ixiforo  them. 

It  i*  next  suggested  that  the  jury  rejected  this  receipt  be- 


NOVEMBER  TERM,  1863.  391 

Cook  v.  Smith. 

cause  they  believed  it  had  already  been  allowed  by  the  de- 
fendant in  the  endorsement  on  the  bonds  of  the  1st  April, 
1859.  But,  in  the  first  place,  the  presumption  would  be,  if 
it  had  been  allowed  then,  it  would  have  been  taken  up  or 
referred  to  in  some  way,  and  not  left  .outstanding,  as  this 
was,  in  the  hands  of  the  defendant  entirely  unexplained. 
But,  in  the  next  place,  the  evidence  shows  conclusively  that 
it  was  not  included  in  the  endorsements  of  April  1st,  1859. 
The  evidence  upon  the  question,  whether  this  $240  receipt 
was  endorsed  on  the  bond  was,  first,  the  endorsements  them- 
selves, which  are  in  these  words,  "  Rec'd  May  16th,  1859, 
on  the  within  bond,  the  interest  thereon  in  full  to  the  1st 
day  of  April  last." 

It  is  contended  by  the  plaintiff  that  this  is  prima  facie 
evidence  that  this  particular  receipt  was  included.  I  do  not 
see  how  so.  So  far  as  the  simple  endorsement  goes,  it  does 
not  appear  that  the  defendant  was  present,  or  assented  to  it, 
or  had  anything  to  do  with  it.  In  the  absence  of  any  other 
proof,  the  presumption  would  be  that  the  obligee  only  en- 
dorsed those  payments  for  which  there  were  no  loose  receipts 
standing  out;  and  thus  shows  no  presumption  that  this  par- 
ticular payment  was  endorsed,  but  the  contrary  thereof. 
The  only  other  evidence  that  this  receipt  was  included,  is 
that  of  Aaron  Smith,  who  says,  "that  in  May  or  June,  1859, 
he  saw  the  obligee  and  Simeon  Cook  go  to  the  defendant's ; 
the  obligee  and  William  Cook  came  back  together ;  the  ob- 
ligee said  he  had  been  to  defendant,  and  got  a  check  of  the 
defendant  for  $1000.  I  do  not  see  how  this  shows,  either 
that  the  defendant  was  present  at  any  settlement  in  May, 
1859,  or  that  this  receipt  was  endorsed,  or  that  the  defend- 
ant was  present  when  endorsed.  But  if  it  does,  then  it  also 
shows  that,  at  said  settlement,  Simeon  Cook  was  present, 
and  acted  as  the  agent  of  both  parties  in  arranging  and 
making  the  calculation.  But  if  we  are  to  consider  this  as 
evidence,  then  it  is  also  evidence  that  on  that  occasion  the 
defendant,  the  obligee,  and  Cook,  the  present  plaintiff,  were 
all  present,  and  that  Cook  acted  as  agent  of  both  parties. 


392          NEW  JERSEY  SUPREME  COURT. 

Cook  v.  Smith. 

The  endorsements  on  the  bonds  are  in  Cook's  handwriting. 
A  paper,  produced  by  the  defendant,  and  marked  Exhibit 
No.  4,  is  also  in  Cook's  handwriting,  and  the  same  facts  that 
establish  the  presumption  that  the  defendant  was  present, 
and  assented  to  the  endorsement  on  the  bond,  also  establish 
the  fact  that  Exhibit  No.  4  was  made  then  by  Cook,  as  the 
agent  of  both  parties,  and  delivered  by  him  to  the  defend- 
ant as  evidence  of  what  was  really  taken  into  the  computa- 
tion, in  making  the  endorsements  on  the  bonds.  This  Ex- 
hibit No.  4,  l)eing  thus  authenticated,  shows  upon  its  face 
that  this  $240  was  not  taken  into  the  calculation,  for  it 
shows  the  items  which  did  make  tip  the  calculation,  and  this 
item  is  not  among  them ;  nay  more,  this  Exhibit  No.  4  says, 
upon  its  face,  that  the  loose  receipts  which  were  credited  on 
said  bonds  were  delivered  to  the  obligee,  whereas  this  re- 
ceipt is  produced  by  the  obligor.  If  it  had  been  credited,  it 
would  have  Wn  delivered  up  with  the  others. 

It  is  manifest  that  this  $240  receipt  should  have  been 
allowed  by  the  jury. 

The  next  complaint  of  the  defendant  is,  that  the  jury  re- 
jected the  whole  of  his  account.  As  to  that  part  of  it  liable 
to  be  affected  by  the  statute  of  limitations,  the  jury  did  right ; 
as  to  that  part  of  it  not  liable  to  the  statute,  the  jury  rightly 
rejected  all  charges  for  cash  ;  as  to  the  rest  of  the  account, 
it  is  proved  by  the  defendant's  book  of  account ;  the  book  is 
proved  and  unirapeached,  and  supported  by  other  evidence, 
and  no  evidence  against  it.  It  ought  to  have  been  allowed 
by  the  jury. 

The  next  complaint  is,  that  the  jury  disallowed  the  defend- 
ant's payment  of  taxes  on  the  bond. 

These  taxes  were,  $l(j,  Den-ember,  1857;  $16,  December, 
1858;  $16,  December,  1855;  $!<>,  December,  185G;  $16, 
D«vember,  1859;  $16,  D«*vml»er,  1860;  $16,  December, 
1861.  Those  jmymentH  were  proved  by  the  collectors  to 
whom  they  were  respectively  paid;  two  of  the  duplicates,  for. 
the  yearn  1857  and  1858,  were  also  read  in  evidence,  showing 


NOVEMBER  TERM,  1863.  393- 

Cook  v.  Smith. 

the  assessments  for  these  bonds.     These  payments  were  all 
rejected  by  the  jury. 

The  court  charged  the  jury  that  the  law  creating  these 
taxes,  having  been  passed  after  these  bonds  were  given,  im- 
paired the  obligation  of  contracts,  and  was  therefore  void,  and 
charged  that  the  jury  should  not  allow  the  taxes,  because 
there  was  no  legal  proof  that  they  had  been  legally  assessed. 

First,  was  the  tax  law  in  question  unconstitutional  as  re- 
garded bonds  made  before  its  passage?  These  bonds  were 
made  in  1847;  the  taxes  were  for  the  years  1856  to  1861, 
inclusive.  The  law,  Nix.  Dig.  851,  §  7,*  provides  that  every 
person  shall  be  assessed  in  the  township  where  he  resides  for 
all  the  personal  estate  owned  by  him ;  provided  that  where 
the  holder  of  a  mortgage  shall  not  reside  in  the  same  town- 
ship where  the  mortgaged  premises  lie,  the  tax  or  the  money 
secured  shall  be  assessed  against  the  mortgagor,  and  paid  by 
him  in  the  township  where  the  lands  lie,  and  the  receipt  of 
the  collector  shall  be  a  legal  payment  for  so  much  of  the 
interest.  Here  the  mortgagee  lived  in  a  different  township, 
and  the  taxes  were  paid  by  the  mortgagor.  I  cannot  see  in 
what  sense  such  an  assessment  can  be  unconstitutional,  with- 
out making  all  taxes  whatever  unconstitutional.  It  is  a  tax 
upon  property — upon  the  bond  and  mortgage ;  it  in  no  sense 
impairs  the  obligations  of  a  contract;  on  the  contrary,  it 
affirms  the  contract,  and  taxes  the  subject  for  sustaining  it. 

In  the  second  place,  as  to  the  charge  of  the  court,  that 
these  taxes  could  not  be  allowed  because  no  proof  that  they 
were  legally  assessed.  As  to  the  years  1857  and  1858,  the 
duplicates  were  in  evidence,  and  that  is  conclusive  evidence 
of  its  proper  assessment.  As  to  the  other  years,  the  proof 
shows  that  if  not  assessed,  it  ought  to  have  been,  and  the 
presumption  is  that  the  public  officers  performed  their  duty, 
and  did  do  it.  In  the  next  place  the  mortgagor  produced  the 
receipts  of  the  collectors,  and  their  oaths  that  they  were  ac- 
tually paid.  The  act,  Nix.  Dig.  851,  §  7,  says,  "  the  receipt 
of  the  collector  shall  be  a  legal  payment  for  so  much  of  the 

*Rev.,  p.  1153,  \  66 ;  p.  1163,  \  110. 


394          NEW  JERSEY  SUPREME  COURT. 

Cook  v.  Smith. 

interest."  The  law,  therefore,  expressly  declares  the  receipt 
of  the  collector  shall  be  a  legal  payment  of  so  much  of  the 
interest.  The  mortgagor,  therefore,  showed  a  legal  payment 
of  so  much  of  the  interest,  by  express  statutory  enactment, 
and  it  was  not  necessary  for  the  mortgagor  to  produce  either 
the  assessment  or  the  duplicate.  The  jury  should  have  al- 
lowed all  these  taxes. 

The  next  com  plaint  of  the  defendant  is,  that  the  jury  cal- 
culated the  interest  on  an  erroneous  principle.  The  jury,  as 
is  manifest  from  their  verdict,  made  no  reference  to  whether 
the  payment  overran  the  interest — they  merely  took  as  true 
the  endorsement  that  the  interest  was  paid  up  to  the  1st 
April,  1859,  and  calculated  interest  afterwards.  The  plain- 
tiff seeks  to  justify  this  by  saying  that,  on  the  1st  April, 
there  was  a  settlement  between  the  parties,  when  they 
agreed  to  this  mode  of  calculation,  and  that  ignorantia  kgis 
non  excusnt. 

But  the  difficulty  is,  there  is  no  such  settlement  proved. 
If  we  reject  Exhibit  No.  4,  there  is  no  evidence  that  the  de- 
fendant was  present,  or  ever  assented  to  any  such  calcula- 
tion ;  and  if  we  admit  Exhibit  No.  4,  it  shows  upon  its  face 
that  it  was  only  a  credit  of  such  loose  receipts  as  were  de- 
livered up  to  the  obligee,  and  not  a  final  settlement,  or 
indeed  any  settlement  at  all,  but  only  a  credit  of  such  loose 
receipts  as  were  then  produced.  There  was  therefore  no- 
thing final,  when  the  endorsements  of  interest  were  nuide, 
and  the  whole  matter  was  left  open.  It  was  good  as  far  as 
it  went.  It  was  a  good  endorsement  for  the  receipts  de- 
livered up  and  the  payments  then  made,  but  foreclosed  no 
right*. 

I  think  the  jury  should  have  allowed — first,  the  taxes 
to  be  credited  on  the  interest,  and  on  the  interest  only ; 
second,  this  $240  receipt,  as  of  its  date;  third,  the  book  ac- 
count, except  what  had  IHKMI  running  over  six  years,  and 
the  charges  for  cash;  and  that,  in  calculating  interest,  the 
jury  should  have  credited — first,  the  taxes  upon  the  interest 
only;  ftecondly,  the  payments,  crediting  from  time  to  time 


NOVEMBER  TERM,  1863.  395 

State  v.  City  of  New  Brunswick. 

upon  the  principal  so  much  of  the  payments  as  overran  the 
interest. 

If  the  plaintiff  agrees  to  remit  the  damages  in  accordance 
with  these  principles,  let  the  verdict  be  entered ;  if  not,  let  it 
be  set  aside,  and  a  venire  de  novo  awarded. 

OGDEN  and  VAN  DYKE,  Justices,  concurred. 

CITED  in  State,  Va/U's  Ex?rs,  pros.,  v.  Runyon,  12  Vroom  106. 


THE  STATE,  JAMES  PAEKER,  PEOSECUTOE,  v.  THE  MAYOR, 
ETC.,  OF  THE  CITY  OP  NEW  BEUNSWICK. 

1.  An  incorporated  city  has  jurisdiction  over  a  turnpike  road  constructed 
within  the  limits  of  the  city,  for  the  purpose  of  regulating,  grading, 
and  paving  it ;  but  has  no  right  to  regulate  and  grade  the  street  so  as 
to  injure  the  turnpike  company,  or  to  interfere  with  their  chartered 
rights :  for  police  purposes,  it  has  authority  to  make  such  municipal 
regulations  as  it  may  deem  expedient.     The  common  council  has  no 
right  to  require  the  turnpike  company  to  grade  or  pave  their  road ;  but 
if  the  road  be  regulated,  graded,  and  paved  under  a  city  ordinance, 
and  the  owners  of  adjoining  lots  assessed  for  the  expenses  of  the  same, 
it  is  no  excuse  for  refusing  to  pay  such  assessment  that  the  rights  of 
the  turnpike  company  are  infringed. 

2.  The  owners  of  adjacent  lots  have  no  vested  right  to  require  the  turn- 
pike company  to  bear  the  expenses  of  such  grading,  &c.,  nor  to  have 
the  road  continued  at  its  original  grade. 

3.  It  is  no  objection  to  an  ordinance  for  such  grading,  <&c.,  that  the  fee 
of  the  soil  of  the  road  is  in  the  turnpike  company. 

4.  If  an  ordinance  requires  a  street  to  be  properly  regulated  and  graded, 
&c.,  without  any  fixed  grade  being  established,  and  afterwards  pro- 
vides that  the  work  be  done  under  the  superintendence  of  the  city 
paver,  or  other  person  appointed  by  the  common  council,  and  this  is 
in  accordance  with  the  terms  of  the  charter,  it  is  sufficient. 


On  certiorari.  In  matter  of  assessment  for  grading  and 
paving  part  of  Easton  avenue  under  an  ordinance  of  the  city- 
council. 

Parker  and  Keasbey,  attorneys  of  plaintiff. 

HAINES,  J.     The  mayor,  recorder,  aldermen,  and  common 


396         NEW  JERSEY  SUPREME  COURT. 


State  v.  Citv  of  New  Brunswick. 


council  of  the  city  of  New  Brunswick,  by  an  ordinance, 
passed  the  seventh  day  of  May,  A.  D.  1860,  ordained  that  the 
owners  and  occupants  of  the  several  lots  fronting  or  lying 
on  Easton  avenue,  between  Prospect  street  and  Richardson 
street,  in  the  city  of  New  Brunswick,  should  cause  that  portion 
of  said  avenue,  lying  in  front  of  their  respective  lots,  to  the 
centre  thereof,  to  be  properly  regulated  and  graded,  and  the 
gutters  thereof  to  be  properly  graded,  paved,  and  curbed,  and 
the  sidewalks  to  be  properly  graded  and  pa  veil,  in  the  whole 
length  thereof,  witli  flag-stone  or  brick,  not  less  than  four  and 
a  half  feet  in  breadth,  in  a  good  and  substantial  manner,  under 
the  direction  of  the  city  paver,  or  other  person  appointed  by 
the  common  council.  The  prosecutor,  being  the  owner  in 
fee  of  certain  lots  of  land  fronting  on  that  avenue,  was  as- 
sessed for  a  portion  of  the  cost  of  executing  the  ordinance ; 
and  complaining  of  the  assessment,  he  seeks  to  have  it  set 
aside  on  two  several  grounds — first,  that  no  jurisdiction  exists 
in  the  city  council  to  order  or  execute  the  grading  of  this 
street;  secondly,  that  the  ordinance  is  void  for  uncertainty,  or 
at  least  is  too  vague  in  its  terms  to  form  a  ground  for  penalty 
on  non-compliance. 

1st.  On  the  ground  of  want  of  jurisdiction,  it  is  insisted 
that  the  street  is  a  part  of  the  road  of  the  New  Jersey  Turn- 
pike Company  ;  that  the  land  itself  belongs  to  them ;  that  it 
constitutes  a  part  of  the  road,  for  traveling  over  which  the 
company  charges  and  receives  toll ;  and  that  therefore  the 
company  has  the  right,  and  to  them  belongs  the  duty  of 
regulating  the  rood,  and  that  the  common  council  have  no 
right  to  impose  that  duty  on  others,  or  to  do  it  themselves. 
The  act  to  ineorjKmite  the  city  of  New  Brunswick,  passed 
February  20th,  1849,  by  its  10th  section,  provides  that  it 
shall  Ixi  lawful  for  the  common  council  of  the  said  city  to 
make  and  establish  ordinances  and  regulations  for  the  level- 
ing, grading,  regulating,  paving,  curbing,  flagging,  or 
gravelling  of  the  streets  and  sidewalks  of  the  said  city,  and 
to  require  the  work  to  be  done  by  the  owners  or  occupants 
of  lots  fronting  on  or  adjoining  said  streets,  and  to  be  super- 


NOVEMBER  TERM,  1863.  397 

State  v.  City  of  New  Brunswick. 

intended  by  the  city  paver,  who,  under  the  common  council, 
shall  prescribe  the  manner  in  which  such  work  shall  be  done. 
The  act  to  incorporate  the  New  Jersey  Turnpike  Company, 
passed  Febr'my  27th,  1806,  authorizes  the  construction  of 
a  turnpike  road,  four  rods  wide,  beginning    in   the  city  of 
New  Brunswick,  in  Albany  or  French  street,  between  the 
bridge  and  the  fork  of  said  street.     This  seems  to  contem- 
plate that  the  road  so  constructed  is  to  be  within  the  city, 
and  one  of  its  streets.     By  the  state  of  the  case,  it  appears 
that  the  turnpike  road  so  constructed    is  one  of  the  public 
recognized  streets  of  the  city,  and  known  as  Easton  avenue. 
Hence  it  is  obvious  that  the  common  council  have  jurisdiction 
over  the  streets   of   their  city,  for  regulating,  grading,  and 
paving,  and  over  the  part  of  the  road  in  question,  as  one  of 
those  streets.     They  have  no  right  to  regulate  or  grade  the 
street  so  as  to  injure  the  turnpike  company,  or  to  interfere 
with  their  chartered  rights.     But  they  have,  for  police  pur- 
poses, the  authority  to  make  such  municipal  regulations  as 
they  deem  expedient.     They  may  have  no  power  to  require 
the   turnpike  company  to   grade    their   road   or  to  pave  it. 
But  if,  in  their  judgment,  the  health,  comfort,  convenience, 
or   prosperity  of  the   city  requires    it,  they  may  order    the 
street  to  be  regulated,  graded,  and  paved  at  the  expense  of 
the  owners  or  occupants  of  the  lots  fronting  on   it ;  and  it  is 
no  excuse  for  the  owners  to  say,  that  the  rights  of  the  turn- 
pike  company   are    infringed.     When   that    company   com- 
plains, their  rights  will  be  ascertained  and  protected.     The 
improvement  is  presumed  to  be  for  the  benefit  of  the  owners, 
and  to  increase  the  intrinsic  value  of  their  lots;   and  there 
is  no  injustice  in  requiring  them  to  pay  the  expense  of  an 
improvement,  which  is  to  contribute  to  their  enjoyment  and 
to  promote  their  interest.     There  is  no  vested  right  in  the 
owners  of  the  adjacent  lots  to  require  the  turnpike  company 
to  bear  that  expense,  nor  to  have  the  road  continued  at  its 
original  grade.     They  have  the  right,  in  common  with  other 
citizens,  of  requiring   the   turnpike  company  to  keep   their 
road   in  the  condition  required    by  their  charter,  under  the 
VOL.  i.  2s 


398          NEW  JERSEY  SUPREME  COURT. 

State  v.  City  of  New  Brunswick. 

penalties  provided  for  neglect.  If  the  company  may  abandon 
their  road,  as  is  suggested  by  the  counsel  of  the  prosecutor, 
what,  on  such  abandonment,  would  become  of  the  supposed 
vested  right  ?  It  would  surely  vanish,  and  that  without  any 
just  cause  of  complaint.  The  right  to  abandon  the  road,  is 
wholly  repugnant  to  any  right  to  the  owners  of  the  adjacent 
lands  to  require  its  continuance.  I  can  see  no  reason  for 
objection  to  the  ordinance  in  the  fact,  that  the  fee  of  the  soil 
of  the  road  is  in  the  turnpike -company.  Should  they  aban- 
don the  road,  the  public  authorities  can  order  it  to  be  laid 
out  and  opened  as  a  street  or  public  highway,  making  due 
compensation,  the  same  as  might  be  done  if  the  company  had 
only  the  right  of  way,  and  the  fee  were  in  the  owners  of  the 
adjacent  lots.  Nor  can  I  see  the  force  of  the  argument, 
sought  to  l>e  drawn  from  the  act  of  March  19th,  1857,  which 
authorizes  the  turnpike  companies  of  Springfield  and  Middle- 
sex to  cede  and  transfer  to  the  city  of  Newark  any  part  of 
their  resj>ective  turnpike  roads  lying  within  that  city.  The 
object  of  that  act  was  chiefly,  to  enable  those  companies  to 
cede  jKirts  of  their  respective  roads,  and  to  relinquish  the 
repairing  and  control  of  such  parts,  without  affecting  their 
right  to  the  use  and  enjoyment  of  the  other  parts  as  before 
used  and  enjoyed. 

2d.  The  other  reason  for  setting  aside  the  assessment  is, 
that  the  ordinance  is  uncertain  and  vague  in  its  terms.  The 
ground  of  the  objection  is,  (hat  no  fixed  grade  had  been 
established,  but  that  the  ordinance  required  the  street  to  be 
properly  regulated  and  graded,  and  the  gutters  to  l>e  projxjrly 
graded,  paved,  and  curln-d,  and  the  sidewalks  to  l>e  properly 
graded  ami  paved  with  flagging  or  bricks,  Ac.  This  objec- 
tion would  have  been  well  taken,  had  the  ordinance  made  no 
other  provision  for  the  regulation  of  the  work.  But  it  does 
provide  for  it,  and  declares  that  it  is  to  be  done  under  the 
buperintendenoe  of  the  city  paver,  or  other  person  appointed 
by  the  common  council;  and  this  is  in  accordance  with  the 
terms  of  the  charter  of  the  city,  which  authorizes  the  com- 
mon council  to  require  the  work  to  be  done  by  the  owners 


NOVEMBER  TERM,  1863.  399 

Berry  v.  Doremus. 

or  occupants  of  the  lots,  and  to  be  superintended  by  the  city 
paver,  who  under  the  common  council,  shall  prescribe  the 
manner  in  which  the  work  shall  be  done.  There  is  no  reason 
why  the  common  council  may  not  regulate  the  grade,  and 
prescribe  the  manner  in  which  the  work  should  be  done,  as 
well  through  a  competent  city  paver  as  by  a  committee  of 
their  own  body,  or  a  street  commissioner.  Whether  they 
could  or  could  not,  it  is  sufficient  for  the  purpose  that  the 
charter  authorizes  them  so  to  act.  It  may  be  that  the  grade 
would  not  be  uniform,  or  such  as  would  be  the  best.  But 
the  abuse  of  a  power  is  no  argument  against  its  proper  exer- 
cise. The  ordinance  required  the  work  to  be  properly  done, 
under  the  direction  of  the  officer  named  in  the  charter.  It 
does  not  appear  that  any  offer  on  the  part  of  the  prosecutor 
was  made  to  do  the  work,  or  that  he  failed  to  do  it  for  the 
want  of  information  of  what  was  the  proper  grade,  or  the 
proper  mode  of  paving  and  grading.  There  appears  to  be 
no  reason  for  setting  aside  the  assessment,  and  it  must  there- 
fore be  affirmed  with  costs. 

Assessment  affirmed. 
ELMER,  J.,  concurred. 

CITED  in  State,  Sigler,  pros.,  v.  Fuller,  Collector,  5  Vroom  233,  235. 


HENEY  H.  BEERY,  ADMINISTEATOE  OF  HANNAH  EYEE- 
SON,  DECEASED,  v.  JACOB  G.  DOEEMUS. 

1.  M.  owed  E.  for  board,  and  in  1849  sold  a  lot  of  land  to  D.     In  con- 
sideration thereof,  D.  promised  M.  that  he  would  pay,  as  part  of  the 
consideration  money,  to  E.  $100  per  year  after  the  death  of  M.,  as  long 
as  E.  should  live.     M.  died  in  1849,  and  E.  in  1858.     On  an  action  of 
assumpsit,  brought  by  the  administrator  of  E.,  D.,  in  1859 — 

2.  Held,  that  it  was  no  ground  of  non-suit,  either  because  the  statute  of 
limitations,  nor  because  it  was  a  suit  brought  for  an  annuity,  nor  be- 
cause it  was  an  attempted  testamentary  disposition,  nor  because  it 
was  a  proviso  to  pay  the  debt  of  another,  nor  because  it  was  an  agree- 
ment to  be  performed  within  one  year,  nor  because  it  was  an  attempt 
to  create  a  trust. 


400         NEW  JERSEY  SUPREME  COURT. 

Berry  v.  Doremus. 

In  assumpsit.  On  case  stated  for  advisory  opinion  of  this 
court. 

James  Mead,  in  1849.  sold  a  house  and  lot,  in  New  York, 
to  Jacob  G.  Doremus,  the  defendant,  for  §5000  ;  and  the 
said  defendant  thereupon,  and  in  part  consideration  of  the 
purchase,  promised  the  said  Mead  that  he  would  pay  to 
Hannah  Ryerson,  the  plaintiff's  intestate,  to  whom  he  was 
indebted  for  board,  the  sum  of  $100  per  annum,  after  the 
death  of  said  Mead,  so  long  as  the  said  Hannah  Ryerson 
should  live.  Jacob  Mead  died  in  1849,  and  Hannah  Ryer- 
son in  1857.  After  the  death  of  Hannah  her  administrator,. 
Henry  H.  Berry,  brought  this  action  to  recover  the  amount 
due  on  said  promise. 

On  the  trial  at  the  Morris  Circuit,  the  plaintiff  having 
rested  his  cause,  the  defendant  moved  to  nonsuit  on  six  several 
grounds,  as  stated  below  in  the  opinion  of  the  court.  The 
nonsuit  was  granted,  and  the  Circuit  Court  certified  the  rase 
to  this  court  for  their  advisory  opinion,  whether  the  nonsuit 
was  rightly  granted  upon  any  of  the  grounds  taken. 

For  the  plaintiff,  A.  W.  Bell. 
For  the  defendant,  J.  Vanatta. 

VBEDENBURGH,  J.  This  is  an  action  of  assumpsit,  brought 
by  the  plaintiff  against  the  defendant,  upon  a  promise  alleged 
to  have  been  made  by  the  defendant  to  the  plaintiff's  intes- 
tate, on  the  2d  day  of  April,  1849,  by  which  the  defendant, 
in  consideration  of  a  sale  to  him,  by  one  James  Mead,  of  the 
house  and  lot  No.  33  Leonard  street,  in  the  city  of  New 
York,  at  the  price  of  $5000,  promised  Mead  to  pay  the 
said  intestate,  as  part  of  the  said  purchase  money,  one 
hundred  dollars  a  year,  after  said  Mead's  death,  during  her 
natural  life.  The  plaintiff,  on  the  trial,  proved  the  execu- 
tion and  delivery  of  the  deed  for  the  said  premises  by  Mead 
to  the  defendant,  on  the  said  2d  day  of  April,  1849,  the 
promise  to  Mead,  by  the  defendant,  to  pay  the  intestate,  as 


NOVEMBER  TERM,  1863.  401 


Berrv  v.  Doremus. 


'before  stated,  in  consideration  of  board  owing  by  Mead  to  her, 
the  death  of  Mead,  on  the  5th  of  April,  1849,  and  the  death 
of  the  intestate,  on  the  13th  February,  1858. 

The  plaintiff  thereupon  rested  ;  whereupon  the  defendant 
moved  for  a  nonsuit,  upon  the  following  grounds : 

1st.  Because  plaintiff  had  proved  no  promise  to  pay  within 
six  years. 

2d.  Because  the  action  is  to  recover  the  arrears  of  an  an- 
nuity, which  cannot  be  created  except  by  deed. 

3d.  Because  it  is  an  attempted  testamentary  disposition. 

4th.  Because  it  is  an  agreement  to  pay  the  debt  of  another, 
and  not  in  writing,  and  void  under  the  statute  of  frauds. 

5th.  Because  it  is  an  agreement  not  to  be  performed  within 
one  year,  and  not  being  reduced  to  writing,  is  void  under  the 
statute  of  frauds. 

6th.  Because  it  was  an  attempt  to  create  a  trust,  and  not 
being  in  writing  is  void  by  the  statute  of  frauds. 

The  court  granted  the  nonsuit,  and  certified  the  case  to 
this  court  for  their  advisory  opinion,  whether  the  nonsuit 
was  rightly  granted  upon  any  of  the  grounds  above  stated. 
We  are  not  asked  if  the  nonsuit  was  rightly  granted  gene- 
rally, but  whether  it  was  rightly  granted  for  the  grounds 
stated. 

As  to  the  first  ground  taken,  the  statute  of  limitations 
does  not  commence  to  run  until  six  years  after  the  cause  of 
action  accrues.  Here  the  cause  of  action  only  accrued  at 
the  end  of  each  year  after  the  death  of  Mead,  and  until  the 
intestate  died.  Mead  died  in  1849,  and  the  intestate  in 
1858,  and  this  suit  was  brought  in  1859.  There  are  several 
years,  therefore,  which  could  not  have  been  barred  by  the 
statute. 

The  second  ground  for  nonsuit  assigned  is — because  the 
action  is  brought  to  recover  the  arrears  of  an  annuity,  which 
cannot  be  created  except  by  deed. 

But  the  cause  of  action  set  forth  in  the  declaration  is  not 
an  annuity,  nor  does  the  proof  show  an  annuity.  The  de- 


402          NEW  JERSEY  SUPREME  COURT. 

Berry  v.  Doremus. 

claration  counts  simply  on  a  parol  assumpsit.  An  annuity  i» 
an  incorporeal  hereditament  created  by  grant,  which  neces- 
sarily implies  an  instrument  uiuler  seal.  Coke  Lii.  166,  6. 

The  plaintiff's  claim  is  not  for  an  annuity,  within  the 
technical  meaning  of  the  term,  at  all,  but  upon  a  simple  as- 
sumpsit to  pay.  The  doctrine  of  annuities  has  no  application 
therefore  to  the  case.  The  second  ground  assigned  for  a  non- 
suit therefore  fails. 

The  third  ground  assigned  for  a  nonsuit  was,  that  the  pro- 
ceedings between  these  parties,  Mead,  the  intestate,  and  the 
defendant,  was  an  attempted  testamentary  disposition.  But 
how  so?  It  was  not  so,  as  regarded  the  intestate  and  the 
defendant ;  nor  can  I  see  how  it  was  on  the  part  of  Mead. 
He  owed  the  intestate,  and  it  wanted  no  testamentary  dispo- 
sition to  force  him  to  pay  his  debts.  He  might  j>ay  her  by 
any  legal  arrangement  inter  vivos  that  he  saw  fit.  If  he  saw 
fit  to  sell  real  estate,  and  pay  her  out  of  the  proceeds  at  any 
siich  time  as  suited  himself,  there  was  nothing  testamentary 
about  it.  He  might  sell  his  house,  and  take  pay  on  any 
terms  of  credit  in  his  discretion.  Suppose  he  had  exacted 
from  the  purchaser  a  note  payable  to  the  intestate  as  part 
pay  for  the  lot,  there  could  be  nothing  testamentary  or  ille- 
gal in  it.  A  note  of  hand  by  A.  to  pay  B.,  after  the  death 
of  C.,  is  perfectly  good,  so  far  as  anything  testamentary  alwnt 
it  is  concerned. 

The  fourth  ground  assigned  for  granting  the  nonsuit  was, 
because  the  agreement  of  the  defendant  was  to  pay  the  debt 
of  another  |>erson,  and  not  in  writing,  and  so  void  under  the 
statute  of  frauds.  But  this  agreement  of  the  defendant  was 
evidently,  not  one  to  pay  the  debt  of  another.  It  was  an 
agreement  to  pay  his  own  debt.  He,  by  taking  the  deed, 
became  indebted  to  the  grantor,  and  his  agreement  was  to  pay 
a  part  of  his  indebtedness  to  the  grantor,  to  his  order  or  ap- 
pointee. It  was  the  same,  in  legal  effect,  as  agreeing  to  pay 
HO  much  of  the  consideration  of  the  deed  to  the  grantor  himself. 
By  «o  doing  lie  was  not  paying  the  debt  of  Mead,  but  his  own 
debt  to  Mead. 


NOVEMBER  TERM,  1863.  403 

Berry  v.  Dorernus. 

The  fifth  ground  of  demanding  a  non-suit  was  because  the 
agreement  was  void  under  the  statute  of  frauds,  as  it  was  not 
reduced  to  writing,  and  was  an  agreement  not  to  be  performed 
within  a  year.  But  here  the  contract  on  the  part  of  Mead  was 
actually  and  entirely  performed,  at  the  very  time  of  making 
it.  His  deed  was  actually  executed  and  delivered,  and  the 
defendant  went  immediately  into  possession  under  it,  and  al- 
ways has  been,  and  still  is  in  possession  of  the  premises  under 
it,  and  always  has,  and  still  does  receive  the  rents  of  the  same 
under  it.  He  now  seeks  to  keep  the  land  under  the  deed,  and 
repudiate  the  consideration  money  by  force  of  the  statute  of 
frauds.  But  the  statute  of  frauds  applies  to  no  such  case.  It 
only  applies  to  cases  where  neither  side  is  to  perform  the  con- 
tract within  one  year.  At  least  it  does  not  apply  to  cases  where 
one  of  the  parties  is  to  perform,  and  does  in  fact  perform  im- 
mediately. 3  Barn.  &  Ad.  889,  (23  Eng.  Com.  Law  217)  Don- 
dlan  v.  Read;  7  Taunt.  157,  Holy  \.  Roebuck;  11  East  142, 
Boy  dell  v.  Drummond ;  I  Ld.  Raym.  316,  Smith  v.  Westall; 
1  B.  &  A.  722,  Bracegirdle  v.  Heald  ;  3  Burr.  1278,  Fenton  v. 
Emblers;  11  Mete.  411;*  1  South.  145;|  2  'Denio  87, Broad- 
well  v.  Getman ;  2  Parsons  on  Cont.  319,  note  2,  and  cases 
there  died;  13  Barb.  498  ;|  4  Exeh.  631,  Cherry  v.  Heming. 

The  sixth  ground  uged  for  a  non-suit  was,  because  it  was 
an  attempt  to  create  a  trust,  and  not  being  in  writing,  is  void 
by  the  statute  of  frauds.  But  I  cannot  see  what  trust  was 
here  attempted  to  be  created.  It  was  an  ordinary  deed  of 
bargain  and  sale  for  the  consideration  therein  expressed. 
The  defendant  agreed  to  pay  the  consideration  as  the  grantor 
prescribed.  The  grantee  assents  to  the  terms  of  payment, 
among  which  was  the  agreement  to  pay  part  of  the  considera- 
tion money  to  the  intestate,  in  place  of  paying  it  to  the 
grantor  himself.  There  was  no  more  trust  created  in  agree- 
ing to  pay  the  intestate,  than  in  agreeing  to  pay  the  grantor 
himself.  There  was  no  other  trust  than  there  always  is  be- 
tween the  vendor  and  vendee,  when  the  vendee  agrees  to 
pay  the  consideration  at  a  future  time,  or  in  the  vendee 

*  Lyon  v.  King,      f  Mannings  v.  Randolphs.      %  Talmadye  v.  Eensellaer 
and  Saratoga  R.  R.  Co. 


404          NEW  JERSEY  SUPREME  COURT. 


State  v.  Donahay. 


agreeing  to  pay  the  vendor  for  a  pound  of  sugar  the  next 
day.  The  agreeing  to  pay  part  of  the  consideration  to  the  in- 
testate was  the  same,  in  legal  effect,  as  agreeing  to  pay  the 
grantor.  The  whole  upshot  of  the  matter  was,  that  the  de- 
fendant owed  Mead  for  land  sold,  and  agreed  with  Mead  to 
pay  part  of  the  purchase  money  to  his  order,  instead  of  to 
himself.  There  was  no  s.uch  trust  as  required  to  be  in  writing 
by  the  statute  of  frauds.  I  see  no  reason  to  grant  a  non-suit 
upon  any  of  the  grounds  urged  upon  the  Circuit  Court,  and 
think  that  the  court  should  l>c  advised  accordingly. 

OGDEN  and  VAN  DYKE,  Justices,  concurred. 


THE  STATE,  THOMAS  WINSOR  AND  OTHERS,  PROSECUTORS 
v.  JOSEPH  DON  A II  AY,  COLLECTOR  OF  THE  TOWNSHIP 
OF  HO  WELL. 

1.  On  a  certwrari  to  set  aside  au  assessment  imposed  by  a  meeting  of  the 
taxable  inhabitants  of  a  school  district,  (Nix.  Dig.  780)  the  court  will 
not  decide  the  It-gal  existence  of  such  corporation,  or  the  legality  of 
the  election  or  appointment  of  the  persons  who  acted  as  trustees  to  in- 
corporate the  dintrict. 

2.  The  certificate  of  the  trustees  of  the  proceedings  of  a  meeting  to  order 
money  to  be  rained  by  taxation,  need  not  set  forth  the  places  at  which 
the  notice*  of  the  meeting  were  set  up;  if  in  the  words  of  the  act,  "in 
at  least  three  public  place*  in  said  district,"  it  is  sufficient. 


On    ceriittrari.     In    matter    of  assessment   for   schools   in 
school  district  No.  6,  in  the  township  of  Howell. 

For  the  prosecutors,  A.  ('.  McLean. 
For  defendant, . 

The  opinion  of  the  court  was  delivered  by 
ELM KK,  .1.      This*  cerliarari   is   prosecuted    to   procure   a 
revcrsil  of  the  tax  imjK>>ed  by  a  meeting  of  the  taxable  in- 


NOVEMBER  TERM,  1863.  405 


State  v.  Hallam. 


habitants  of  West  Farms  school  district,  No.  6,  held  on  the 
twenty-fourth  day  of  May,  1862.  The  district,  it  appears, 
was  incorporated  by  means  of  a  certificate  of  three  persons, 
acting  as  trustees,  and  the  town  superintendent,  dated  May 
13th,  filed  and  recorded  on  the  same  day.  It  is  now  objected 
that  one  of  these  trustees  was  not  elected  by  the  inhabitants 
of  the  district,  but  was  appointed  by.  the  other  two  to  fill  a 
vacancy.  This  involves  the  question,  whether  the  corpora- 
tion had  a  legal  existence,  and  cannot  be  tried  in  this  col- 
lateral way.  State  v.  Van  Winkle,  1  Dutcher  73. 

Another  objection  to  the  proceeding  is,  that  the  certificate, 
signed  and  sworn  to  by  the  trustees,  and  delivered  to  the 
assessor,  does  not  set  forth  the  places  at  which  the  notices  of 
the  meeting  were  set  up,  but  only,  in  the  words  of  the  act, 
"  in  at  least  three  public  places  in  said  district."  This  was, 
in  my  opinion,  a  sufficient  compliance  with  the  act,  and 
brings  the  case  within  the  decision  of  the  Court  of  Errors  in 
Hardcastle  v.  The  State,  3  Dutcher  352.  It  is  also  shown,  by 
the  proof,  at  what  places  the  notices  were  in  fact  set  up,  and 
that  they  were  the  three  most  public  places  in  the  district. 

The  assessment  must  be  affirmed. 

•CITED  in  State,  ex  rel.  Mitchell,  v.  Tolan,  4  Vroom  202. 


THE    STATE,    THE    GLOUCESTEE     MANUFACTURING    CO., 
PEOSECUTOE,  v.  THOMAS  HALLAM,  COLLECTOR  ETC. 

1.  Under  the  act  of  1862,  private  corporations  must  be  assessed  at  the 
full  and   actual  value  of  their  capital   stock,  and  not   on  the  full 
amount  of  their  capital  stock  paid  in. 

2.  The  provisions  of  several  apparently  conflicting  sections  of  the  act, 
discussed. 


On  certiorari  to  review  an  assessment  made  against  the 
property  of  the  defendants,  under  the  tax  law  of  1862,  and 
to  settle  the  true  mode  of  valuation. 


406          NEW  JERSEY  SUPREME  COURT. 

State  v.  Ilallam. 
For  the  prosecutor,  A.  Browning. 

For  the  defendants,  P.  L.  Voorhees. 

The  opinion  of  the  court  was  delivered  by 

VAX  DYKE,  J.  The  plaintiffs  are  a  corporation,  chartered 
by  the  legislature  of  the  state.  By  the  affidavits,  taken 
and  -r  the  order  of  the  court,  and  which  are  not  contro- 
verted, it  appears  that  their  capital  originally  paid  in  was 
$361,000,  but  through  losses  of  various  kinds,  their  works 
having  been  twice  destroyed  by  fire,  their  stock  has  become 
reduced  in  value  from  §25  per  share  to  five  dollars  per  share, 
which  would  reduce  the  value  of  the  $361,000  paid  in  to- 
$72,200,  yet  the  assessor  has  assessed  them  on  the  sum  of 
$361,000,  originally  paid  in,  and  not  on  the  present  actual 
value  of  Uieir  property ;  and  whether  this  assessment  on  the 
full  sum  paid  in  is  right  or  not,  is  the  question  for  our  con- 
sideration. 

The  assessment  was  evidently  made  in  a  supposed  obe- 
dience to  the  directions  of  the  8th  section  of  the  act  of 
March  28th,  1862,  which  enacts  "that  all  private  corpora- 
tions of  this  state,  except  those  which,  by  virtue  of  any  irre- 
pealable  contracts  in  their  charters,  or  other  contracts  with 
this  state,  are  expressly  exempted  from  taxation,  shall  be, 
and  are  hereby  required  to  be  respectively  assessed  and  taxed 
at  the  full  amount  of  their  capital  stock  paid  in  and  accumu- 
lated surplus." 

If  the  act  contained  nothing  else  on  the  subject  but  this, 
however  unreasonable  and  unjust  it  might  seem,  I  would 
feel  myself  constrained  to  sustain  the  construction  put  upon 
it  by  the  assessor.  But  to  give  the  8th  section  this  con- 
struction, is  to  bring  us  into  direct  conflict  with  the  language 
of  til-  7th  section,  which  is  quite  as  explicit  and  positive, 
fur  more  controlling  and  far  less  dubious  in  it.-  character, 
than  the  8th  section.  The  6th  section  relates  merely  to  u 
poll-tax,  but  the  7th  section  is  the  first  one  which  defines 
und  ile.Hcribe»  the  kind  of  property  which  is  liable  to  taxu- 


NOVEMBER  TERM,  1863.  407 


State  v.  Hallam. 


tion.  Without  entering  into  minute  specifications  of  the  ob- 
jects of  taxation,  it  lays  down  the  broad,  clear,  and  universal 
rule,  which  is  eminently  just,  that  all  property  within  the 
state,  of  every  kind  and  description,  whether  real  or  personal, 
and  whether  belonging  to  individuals  or  corporations,  shall  be 
liable  to  taxation  subject  to  certain  exemptions  mentioned,  and 
that  this  property  shall  be  assessed  at  the  full  and  actual  value 
thereof.  The  section  reads  as  follows :  "  That  all  real  and 
personal  estate  within  this  state,  whether  owned  by  individuals 
or  corporations,  shall  be  liable  to  taxation,  in  the  manner,  and 
subject  to  the  exemptions  herein  after  specified,  and  shall  be 
assessed  at  the  full  and  actual  value  thereof,  at  such  rate  per 
dollar  as  to  raise,"  &c. 

Now  it  is  very  manifest,  in  the  case  before  us,  that  the 
assessor  assessed  the  property  of  this  corporation  at  its  full 
value ;  but  it  is  equally  manifest  that  he  did  not  assess  it  at 
its  actual  value,  which  is  contrary  to  the  clear  intention  and 
express  language  of  the  7th  section. 

After  passing  over  several  sections,  mostly  containing  direc- 
tions as  to  the  mode  and  manner  in  which  the  assessment  is  to 
be  made,  we  reach  the  14th  section,  which  is  the  last  on  that 
subject,  and  in  which  the  duties  of  the  assessor  in  that  respect 
seem  to  be  summed  up,  adding  the  tests  by  which  he  is  to 
ascertain  the  full  and  fair  value  of  all  the  property,  which  he 
is  required  to  assess  under  the  act.  That  section  enacts, 
"  that  it  shall  be  the  duty  of  the  assessors,  in  assessing  any 
property  to  be  assessed  under  this  act,  to  assess  and  value  such 
property  at  its  full  and  fair  value,  and  at  such  price  as  in  his 
judgment  said  property  would  sell  for,  at  a  fair  and  bona  fide 
sale  by  private  contract  at  the  time  such  assessment  is  made; 
and  every  assessor  shall  annex  to  his  duplicate  an  oath  or 
affirmation,  in  writing,  to  be  taken  before  any  person  author- 
ized to  administer  an  oath  or  affirmation,  that  all  assessments 
in  the  said  duplicate  contained,  have  been  made  according  to 
the  requirements  of  this  section." 

Now  this  section  not  only  requires  each  assessor  to  make 
every  assessment  which  he  makes  under  this  act,  according 


408          NEW  JERSEY  SUPREME  COURT. 

State  T.  Hallam. 

to  the  requirements  of  tins  14th  section,  that  is,  to  assess  all 
property  at  its  full  and  fair  valuation,  and  at  such  price  as 
in  his  judgment  it  would  sell  for,  at  a  fair  and  bona  fide  sale 
by  private  contract,  at  the  time  of  making  the  assessment; 
but  it  also  requires  him  to  add  to  them  his  oath  or  affirma- 
tion that  he  has  so  made  them  according  to  that  section. 
But  the  assessor  certainly  did  not  assess  this  corporation  or 
its  proj>erty  according  to  the  directions  and  requirements  of 
this  section.  He  says  himself,  in  his  evidence,  that  he  did 
not  so  assess  it,  but  that  he  did  assess  it  upon  its  capital 
stock  paid  in,  irrespective  of  its  market  value,  and  that  he 
did  not  stop  to  inquire  whether  it  was  above  or  l>elow  par. 
He  obtained  his  information  of  the  capital  paid  in  of  the 
officers  of  the  company,  and  was  informed  by  them  of  their 
condition  and  of  the  reduced  and  low  condition  of  their 
stock,  but  made  the  assessment  as  he  did  because  he  deemed 
it  his  duty  so  to  do.  Now  can  it  be  supposed  that  the  legis- 
lature ever  intended  to  make  such  a  hard  and  cruel  distinc- 
tion against  poverty,  and  in  favor  of  wealth,  even  among  cor- 
porations themselves,  as  this  construction  of  the  assessor  seems 
to  claim. 

Can  we  suppose  that  the  legislature  meant  to  tax  one  cor- 
poration, which  still  retains  all  its  capital  paid  in,  and  has  lost 
nothing,  simply  on  the  full  amount  of  such  capital,  and  at  the 
same  time  to  tax  another  corporation  which  has  lost  next  to 
everything,  on  the  same  amount  of  paid  in  capital,  on  the 
ground  that  it  had  onee  owned  it,  but  which,  from  accident 
by  flood,  or  fire,  or  temjM-st,  or  other  unavoidable  cause,  had 
long  since  been  swept  from  existence? 

The  capital  of  a  company  may  Ix?  reduced  so  low  that  to 
comj>el  it  to  j»ay  a  single  tax  assessed  on  the  whole  amount 
jKiid  in  would  exhaust  every  vestige  of  projxTty  that  re- 
mained, and  I  do  not  see,  if  the  construction  contended  for 
IKJ  correct,  why  the  assessors  are  not  required  to  search  out 
every  broken  Iwnk,  and  every  bankrupt  turnpike  company, 
and  every  bankrupt  mining  and  manufacturing  company  and 
railroad  company  which  has  been  legally  organized  in  the 


NOVEMBER  TERM,  1863.  409^ 

State  v.  Hallam. 

state,  and  not  legally  dissolved,  and  assess  them  at  the  full 
amount  of  their  capital  stock  paid  in ;  for  it  seems,  accord- 
ing to  this  construction,  that  whether  a  corporation  still  pos- 
sesses all  the  capital  that  was  once  paid  in,  or  whether  it 
possesses  only  a  part  of  it,  or  whether  it  possesses  no  part  of 
it,  are  questions  about  which  the  assessors  have  no  right  or 
power  to  inquire,  but  must  simply  assess  it  at  its  full  amount 
of  capital  stock  paid  in,  without  regard  to  any  other  con- 
sideration whatever. 

There  may  be  corporations  still  doing  business,  whose  paid 
in  capitals  are  as  thoroughly  sunk  and  gone  as  those  which 
have  ceased  to  do  business.  Why  should  they  not  all  be 
treated  alike,  and  taxed  either  on  their  paid  in  capitals  or 
not  taxed  at  all  ?  And  if  the  assessor  can  inquire  whether 
their  capitals  be  wholly  gone,  why  may  he  not  inquire  if  they 
be  but  partly  gone  ?  for  the  question,  whether  a  corporation 
is  taxable  or  not,  does  not,  it  seems,  depend  on  whether  its 
paid  in  capital  is  still  preserved  or  not,  or  only  a  part  or 
none  of  it,  but  simply  whether  it  is  a  corporation  or  not 
which  once  had  a  paid  in  capital.  If  it  be,  the  assessor  must 
assess  it  on  the  full  amount  of  the  capital  so  paid  in.  But  I 
cannot  suppose  that  any  such  intention  was  ever  entertained 
by  the  legislature,  or  that  we  can  put  any  such  construction 
upon  their  acts. 

I  presume  the  legislature  were  sufficiently  discriminating 
against  partially  exhausted  corporations,  as  between  them 
and  individuals,  when  they  permitted  the  latter  to  deduct 
their  debts  from  the  valuation  of  their  taxable  property, 
but  refused  it  to  the  former,  without  taxing  them  for  prop- 
erty which  they  did  not  own.  Can  we  possibly  suppose 
that  the  legislature  ever  intended  to  tax  any  persons,  either 
natural  or  artificial,  for  property  which  they  did  not  own? 
And  yet  this  is  precisely  what  the  assessor  has  done  in  the 
case  before  us.  He  has  taxed  these  plaintiffs  with  $288,800 
worth  of  property  which  they  have  not  got,  and  which  they 
do  not  own. 

What,  then,  is  the  true  interpretation  of  these  three  sec- 


410          NEW  JERSEY  SUPREME  COURT. 


Slate  v.  Ilallam. 


turns,  which  at  first  view  present  some  appearance  of  con- 
flict? They  seem  to  me  to  be  quite  consistent  with  each 
other,  when  proj>erly  read  and  understood.  The  7th  and 
14th  are  entirely  so,  and  the  8th  effects  in  the  end  the 
same  result  precisely.  All  three  tax  property,  though 
by  a  somewhat  different  process,  exactly  at  its  true  and 
actual  value.  The  7th  and  14th  do  so  directly,  by  taxing 
aU  the  property  which  corporations  own ;  and  the  8th,  by 
taxing  the  paid  in  capital  and  surplus  in  that  form,  exactly 
reaches  and  taxes  all  the  property  which  corporations  of  that 
class  actually  own,  for  their  capitals  and  surplus  embrace  all 
the  proj>erty  which  they  can  own.  For  this  reason,  I  think 
the  8th  section  is  quite  unnecessary,  as  the  same  result 
would  be  reached,  if  the  corporations  mentioned  in  the  8th 
section  were  taxed  according  to  the  provisions  of  the  7th 
section. 

The  legislature,  having  abandoned  the  idea  of  taxing  the 
stock  of  corporations  in  the  hands  of  individual  stockholders, 
have  determined,  instead,  to  reach  and  tax  it  in  the  hands 
of  tlie  corporations  themselves.  In  the  7th  section,  it  is 
called  estate  real  and  |>ersonal.  In  the  8th,  it  is  termed 
capital  stock,  and  in  the  14th,  the  term  property  is  used. 
But  these  expressions  all  mean  the  same  thing.  A  corpora- 
tion has  no  capital  stock  of  any  value,  except  what  is  repre- 
sented by  the  property  which  it  owns,  either  real  or  per- 
sonal, and  in  the  7th  section  provision  is  made  for  taxing  all 
their  capital  stock  by  taxing  all  their  proj>erty,  real  and 
|>crsonal,  and  this  provision  would  also  extend  to  and  include 
all  their  accumulated  surplus;  for  accumulated  surplus  can 
only  consist  of  the  undivided  profits  which  the  company  has 
earned  or  acquired,  and  still  has  on  hand,  and  is  necessarily 
embraced  in  the  property  of  some  kind  which  the  corporation 
owns. 

The  7th  section,  as  already  remarked,  is  sufficiently  broad, 
JLS  well  ax  explicit,  to  cover  all  classes  and  cases  of  taxable 
corporations ;  but  the  legislature  evidently  supposed  that  the 


NOVEMBER  TERM,  1863.  411 

State  v.  Hallam. 

real  amount  and  value  of  the  property  of  those  corporations 
whose  capitals  were  still  full  and  unimpaired,  and  especially 
if  they  had  an  accumulated  surplus  besides,  could  be  much 
easier,  as  well  as  much  more  certainly  reached,  by  taxing 
such  capital  and  surplus  directly  and  in  that  form,  than  by 
attempting  to  search  out  all  the  particular  items  and  parcels 
of  such  property,  wherever  it  might  happen  to  be  found ;  and 
they  accordingly,  in  the  8th  section,  gave  directions  to  the 
assessors,  that  in  assessing  all  private  corporations  which 
still  had  their  paid  in  capitals,  and  also  an  accumulated  sur- 
plus, to  assess  them  directly  and  at  once  on  such  capital  and 
surplus. 

But  all  this  is  neither  inconsistent  nor  in  conflict  with  the 
7th  and  14th  sections,  which  require  that  all  the  property  of 
corporations,  as  well  as  of  individuals,  shall  be  assessed  at  its 
full  and  actual  value.  The  8th  section  only  prescribes  the 
particular  manner  in  which  the  property  of  a  certain  class  of 
corporations  shall  be  assessed,  viz.  by  assessing  their  paid  in 
capital  and  accumulated  surplus. 

But  it  does  not  apply  to  any  other  corporations.  The  sec- 
tion, in  terms,  only  refers  to  those  corporations  which  have 
a  surplus.  There  can  be  no  such  thing  as  an  accumulated 
surplus  unless  the  paid  in  capital  is  kept  good.  The  earn- 
ings and  profits  of  a  corporation  must  be  used  to  meet  its 
losses  and  expenses  first,  and  if  they  do  not  do  this  and  more, 
so  that  the  assets  and  property  show  a  balance  over  and 
above  the  paid  in  capital,  there  can  be  no  surplus.  The  di- 
rections in  the  8th  section  can  only,  and  do  only  apply  to 
such  corporations  as  these.  Hence  the  7th  and  14th  are  not 
disturbed  by  it. 

It  was  quite  useless,  if  not  absurd,  for  the  7th  and  14th 
sections  to  direct,  that  all  the  estate  and  property  of  corpora- 
tions should  be  assessed  at  its  full,  fair,  and  actual  value,  if 
such  assessments  were  all  to  be  controlled  by  the  8th  section  j 
for,  according^  to  that  section,  if  that  is  to  prevail,  their  pro- 
perty is  not  assessed  at  its  full,  fair,  and  actual  value ;  but 


412          NEW  JERSEY  SUPREME  COURT. 

State  v.  Hallam. 

the  corporation,  whose  property  is  still  worth  all  the  capital 
that  ever  was  paid  in,  is  taxed  just  as  much,  and  no  more,  as 
the  corporation  whose  property  and  assets  are  reduced  in 
value  to  next  to  nothing.  I  cannot  admit  the  existence  of 
such  an  absurdity  in  the  act. 

It  apj>ears  very  much  as  if  the  legislature,  after  having 
for  a  special  reason  introduced  the  8th  section,  fearing  that 
some  misapprehension  might  arise,  to  remove  all  doubt,  added 
the  14th  section,  thereby  reaffirming  the  principles  of  the 
7th  section,  furnishing  the  mode  by  which  the  assessor  was 
to  ascertain  the  true  value  of  the  property  asseased,  and  re- 
quiring him  t<>  add  his  oath  or  affirmation  that  he  had  made 
all  of  his  assessments  according  to  the  provision  of  the  last 
named  section.  And  yet  the  assessor,  in  the  case  before 
us,  with  these  two  sections  in  full  view,  has  assessed  these 
plaintiffs  for  §366,000  worth  of  property,  when  it  clearly  ap- 
peared to  him  that  they  only  owned  $72,200  worth.  This, 
I  think,  was  certainly  wrong,  and  the  assessment  should  be 
reduced. 

The  cases  of  The  Washington  Manufacturing  Company, 
The  Kaighii's  Point  Ferry  Company,  The  Camden  Water 
Works  Company,  The  West  Jersey  Ferry  Company,  and  The 
Camden  and  Philadelphia  Ferry  Company,  were  all  argued 
at  the  same  time,  and  are  to  be  governed,  it  is  agreed,  by  the 
game  principles.  The  assessments  in  these  cases,  also,  should 
be  reduced. 

VREDENBURGH,  J.,  dissenting.  This  oertiorari  was  brought 
to  test  the  correctness  of  the  tax  assessed  for  the  year  1862 
upon  the  property  of  the  prosecutor.  The  prosecutor  is  a  pri- 
vate corporation,  and  its  capital  stock  has  been  assessed  at  par. 
It  is  not  denied  that  the  actual  value  of  the  stock  is  not  over 
peventy-five  cents  on  the  dollar.  The  prosecutor  contends 
that  the  tax  should  be  at  the  real,  and  not  its  par  value; 
that  the  tax  should  be  in  proportion  to  value  ;  or,  in  other 
words,  on  $75,000,  and  -not  on  $100,000.  This  tax  was 


NOVEMBER  TERM,  1863.  413 

State  v.  Hallam. 

assessed  by  virtue  of  the  act  of  March  28th,  1862,  Pamph. 
Laws  344.* 

It  is  contended,  on  the  part  of  the  prosecutors,  that  the 
question  is  regulated  by  the  14th  section  of  this  act.  This 
provides  that  it  shall  be  the  duty  of  the  assessors,  in  assess- 
ing any  property  to  be  assessed  under  this  act,  to  assess  and 
value  such  property  at  its  full  and  fair  value,  and  at  sucli 
price  as,  in  his  judgment,  said  property  would  sell  for  at  a 
fair  and  bona  fide  sale  by  private  contract  at  the  time  such 
assessment  is  made.  The  prosecutor  contends  that  in  this 
case  this  section  has  been  disregarded,  and  that  the  assessor 
should  only  have  taxed  it  at  such  price  as  in  his  judgment 
the  capital  stock  would  have  sold  for  at  private  sale.  The 
prosecutor  further  relies  on  the  7th  section  of  the  same  act, 
which  provides  that  all  real  and  personal  estate,  whether 
owned  by  individuals  or  corporations,  shall  be  assessed  at 
the  full  and  actual  value  thereof. 

The  defendant,  however,  justifies  his  assessment  under  the 
8th  section  of  the  same  act.  This  provides  that  all  private 
corporations  shall  be  and  are  hereby  required  to  be  respec- 
tively assessed  and  taxed  at  the  full  amount  of  their  capital 
stock  paid  in  and  accumulated  surplus,  and  the  persons 
holding  the  capital  stock  of  such  corporations  shall  not  be 
assessed  therefor.  It  is  apparent,  if  we  construe  this  8th 
section  literally,  that  the  tax  is  correct  as  it  stands ;  for  it 
says  expressly  that  every  private  corporation  shall  be  taxed 
at  the  full  amount  of  its  capital  stock  paid  in.  But  the 
plaintiif  in  certiorari  contends  that  this  language  is  modified 
by  that  of  the  said  7th  and  14th  sections.  I  think  not.  I 
think  the  8th  section  means  precisely  what  it  says.  This 
will  be  manifest  from  the  presumption  that  the  legislature 
must  be  intended  to  mean  what  they  plainly  say.  I  do 
not  see  how  its  clear  and  explicit  language  can  be  sub- 
ject to  doubt.  It  says  expressly,  that  "every  private  cor- 
poration shall  be  taxed  at  the  full  amount  of  its  capital 

*  This  opinion  refers  to  the  facts  in  the  case  of  the  Cauiden  Water  Works 
Company. 

VOL.  I.  2  G 


414          NEW  JERSEY  SUPREME  COURT. 

State  v.  Hallam. 

stock  paid  in  and  accumulated  surplus,"  and  devotes  two 
long  sections,  the  8th  and  9th,  to  effect  that  object,  and  to 
make  that  very  important  change  upon  the  law  as  it  stood 
before.  But  the  prosecutors  contend  that  this  8th  section 
taxes  private  corporations  on  their  capital  and  accumulated 
surplus,  and  therefore  applies  only  to  corporations  that  have 
an  accumulated  surplus;  that  corporations  whose  stock  is 
below  par  can  have  no  surplus,  and  that  therefore  such  cor- 
porations are  not  within  the  meaning  of  this  section ;  that 
the  section  was  intended  to  govern  those  cor porat ions  only 
which  had  an  accumulated  surplus.  I  cannot  so  think,  for 
many  reasons.  In  the  first  place,  such  is  not  the  gram- 
matical sense  of  the  terms  used.  The  language  is,  "all  pri- 
vate corporations  shall  l>e  taxed  at  the  full  amount  of  capital 
paid  in  and  accumulated  surplus."  Now  sup|x>se  there  is  no 
accumulated  surplus,  and  the  capital  stock  is  taxed,  is  not 
the  surplus  also  taxed  ?  The  surplus  is  nothing,  and  the 
tax  on  it  is  nothing,  and  the  tax  on  the  capital  is  as  strict  a 
compliance  with  the  words  of  the  act,  if  there  is  no  surplus 
as  if  there  is.  But  again,  if  private  corporations  which  have 
no  surplus  be  not  within  this  8tli  section,  then  neither  such 
corporations  nor  the  property  they  represent  can  be  taxed  at 
all;  for  this  very  section  provides  that  the  persons  holding 
the  capital  stock  shall  not  IK?  assessed  therefor,  and  no  other 
section  or  law  provides  for  taxes  on  corporations  as  such. 

All  the  other  sections  relate  to  taxes  on  proj>erty  only, 
which  stock  belonging  to  individuals  is  not,  so  far  as  corpo- 
rations are  concerned.  Let  us  now  take  a  more  general 
view  of  this  subject. 

Before  the  act  of  1851,  A7.r.  D'KJ.  850,  the  general  princi- 
ple of  taxation  wan  to  tax  the  individual  for  the  visible  prop- 
erty he  had  in  possession,  without  deducting  his  debts.  The 
great  change  introduced  into  this  act  of  1854  was  to  tax  to 
the  individual  all  pro|x>rty,  real  and  j»ersonal,  including 
stocks  in  corporations,  in  his  possession,  deducting  his  debts. 
One  of  the  main  objects  of  the  act  of  1862,  under  which 
this  tax  was  levied,  was  to  change  his  principle  as  to  private 


NOVEMBER  TERM,  1863.  415 


State  v.  Hallam. 


<x>rporations,  and  instead  of  taxing  the  individual  for  the 
stock  he  owned,  which  might  be  nothing  after  deducting 
either  his  own  debts  or  the  debts  of  the  corporation,  to  tax 
the  corporation  itself  by  a  special  standard, — to  tax  the  cor- 
poration itself,  not  for  what  its  property  was  worth  after 
deducting  debts,  but  on  its  capital  stock  paid  in  and  its 
accumulated  surplus.  This  act  of  1862  still  preserves  the 
principle  of  taxing  individuals  according  to  what  they  were 
worth  by  deducting  their  debts  from  their  property,  and 
placing  the  tax  on  the  balance.  But  as  regards  private  cor- 
porations, that  was  the  precise  principle  the  legislature  meant 
to  change  by  this  act  of  1862,  and  to  tax  corporations  not 
for  what  they  were  worth,  by  first  deducting  their  debts,  but 
upon  their  whole  capital  paid  in  and  accumulated  surplus. 
This  kind  of  tax  was,  in  its  essence,  partly  a  capitation  tax 
and  partly  a  property  tax ;  it  was  a  capitation  tax,  regarding 
the  corporation  as  an  artificial  person,  so  far  as  regards  the 
tax  on  their  capital  stock  paid  in,  and  a  property  tax,  so  far 
as  regards  the  accumulated  surplus.  To  now  tax  a  private 
corporation  for  what  it  is  worth,  or  its  stock  at  its  value  in 
the  market,  is  but  coming  back  again  to  the  act  of  1854,  and 
repealing  the  act  of  1862  by  judicial  construction.  If  this  be 
not  correct,  why  was  the  act  of  1862  passed  at  all.  Its  effect, 
in  this  regard,  is  precisely  like  that  of  1854;  the  only  differ- 
ence is,  that  in  the  one  case  the  tax  is  paid  by  the  individual 
stockholders,  in  the  other  by  the  treasurer  of  the  corporation, 
but  its  amount  and  object  are  the  same. 

That  this  construction  of  the  act  of  1862  is  correct  appears 
from  the  whole  structure  of  that  act.  Thus  the  act  of  1862 
preserves  the  great  principle,  which  was  the  corner-stone  of 
the  act  of  1854,  which  so  altered  our  ancient  tax  laws,  viz. 
that  of  taxing  the  individual  for  what  he  was  worth ;  but  it 
intended  to  change  that  whole  principle  as  regarded  private 
corporations,  and  apply  an  entirely  different  theory  to  the 
whole  mass  of  private  corporations  in  the  state.  No  one 
can  read  its  different  sections,  especially  the  8th,  9th,  10th, 
12th,  and  13th,  without  being  struck  with  the  anxiety  and 


416          NEW  JERSEY  SUPREME  COURT. 


State  v.  Hallam. 


determination  with  which  the  legislature  are  pursuing  that 
object. 

Let  us  now  turn  our  attention  again  to  the  8th  section  of 
this  act  of  1862. 

As  we  have  before  remarked,  if  private  corporations  which 
have  no  surplus  are  not  within  its  provisions,  then,  as  there 
is  no  other  section  or  law  that  taxes  them,  they  cannot  be 
taxed  at  all.  But  there  are  other  difficulties  connected  with 
the  matter.  If  the  tax  is  to  be,  not  upon  the  amount  of  capi- 
tal paid  in,  but  upon  its  value  in  the  market,  if  there  is  a 
surplus  it  will  probably  be  above  par,  and  that  in  proportion 
to  the  amount  of  the  surplus.  What  then  ?  How,  under  the 
act,  are  we  to  tax  it  above  par  ?  or  if  we  do,  do  we  not,  as 
we  have  to  tax  the  surplus  too,  tax  the  same  property  twice 
over,  first  the  surplus,  and  then  the  stock  above  par  which 
represents  it. 

But  again,  the  value  of  a  stock  in  the  market  depends 
often,  not  so  much  on  the  value  of  the  property  it  represents 
as  upon  the  income  it  produces  •  and  in  the  market  would 
often  bring  $150,  when  all  the  property  of  the  corporation, 
if  sold,  would  not  bring  twenty.  This  would  be  a  tax  not 
on  property,  but  upon  income,  which  there  are  no  indica- 
tions in  the  act,  that  the  legislature  intended. 

But  again,  the  value  of  a  stock,  for  the  most  part,  depends 
on  the  debts  it  owes.  If  $100,000  are  paid  in,  its  stock  is 
presumed  to  be  worth  par;  if  the  debts  are  $100,000,  it  is 
worth  nothing. 

Is  there  any  pretence  that,  under  this  act,  the  assessors, 
in  assessing  private  corj>orations,  are  to  deduct  debts  of  the 
corporations?  Are  not  all  the  mandates  of  the  act  in  the 
very  teeth  of  such  a  procedure?  When  the  legislature  in- 
tend that  debt*  shall  be  deducted  from  property,  do  they 
not,  as  in  the  12th  section,  say  so  explicitly  ?  And  do  t hoy 
not  pass  the  8th  and  9th  sections  for  the  express  and  only 
purpose  of  making  that  distinction  between  corporations  and 
individuals? 

But  again,  this  great  change  which  the  legislature  meant 


NOVEMBER  TERM,  1863.  417 


State  v.  Hallam. 


to  make  between  individuals  and  corporations,  by  the  act  of 
1862,  is  further  manifest  from  the  remaining  clauses  in  its 
Sth  section.  There  are  many  corporations  in  this  state  which 
have  no  capital  stock.  These  clauses  provide  "  that  such  cor- 
porations as  have  no  capital  stock,  shall  be  assessed  for  the 
full  amount  of  their  property  and  valuable  assets,  without  any 
deduction  for  debts  or  liabilities." 

Here  is  the  same  distinction  between  the  taxes  of  individ- 
uals and  corporations.  The  individual  is  taxed  for  his  pro- 
perty after,  these  corporations  before  deducting  debts.  Can 
it  be  possible  that  the  legislature  intended  to  make  any  such 
distinction  between  corporations  which  had,  and  those  that  had 
not  capital  stock,  as  to  tax  the  one  free  from,  the  other  subject 
io  their  debts  ? 

That  the  intent  of  the  Sth  section  is  precisely  what  it  says, 
is  further  manifest  from  the  9th  and  13th  sections.  This 
13th  section  provides  that  the  real  estate  of  private  corpora- 
tions shall  be  assessed  to  said  corporations,  and  the  amount 
deducted  from  the  amount  of  the  capital  stock  and  surplus. 
Now,  if  the  prosecutors  are  right,  this  real  estate  would  have 
to  be  deducted,  not  from  the  amount  of  the  capital  stock,  but 
from  the  amount  of  the  market  value  of  the  stock. 

But  it  is  contended,  by  the  prosecutors,  that  the  construc- 
tion comes  in  collision  with  the  7th  section  of  the  act.  Our 
first  answer  is,  if  it  does,  the  Sth  section  is  subsequent  to 
the  7th,  and  if  both  cannot  stand,  the  7th  will  have  to  yield. 
But  secondly,  we  do  not  see  any  such  collision.  The  1st  sec- 
tion of  the  act  provides,  that  there  shall  be  assessed  on  the 
inhabitants  of  this  state,  and  on  their  taxable  real  and  per- 
sonal property,  and  upon  the  other  objects  of  taxation  herein 
after  specified,  a  state  tax.  So  that  the  1st  section  recog- 
.nizes  three  distinct  objects  of  taxation:  1st,  persons;  2d, 
property ;  3d,  other  objects  of  taxation  :  and  as  private  cor- 
porations are  the  only  other  objects  of  taxation  named  in  the 
act,  the  legislature  must  have  designated  private  corporations 
as  an  object  of  taxation  distinct  from  natural  persons  and  from 
property. 


418          NEW  JERSEY  SUPREME  COURT. 

State  v.  Hallam. 

The  1st  object  of  taxation — natural  persons — is  satisfied  by 
the  poll-tax  in  the  6th  section.  The  2d  object  of  taxation — 
property — is  satisfied  in  the  7th  section,  which  provides  that 
all  property  shall  be  taxed  in  the  manner  and  subject  to  the 
exemptions  in  the  act  sjiecified.  The  3d  object  of  taxation, 
viz.  private  corporations,  is  satisfied  by  the  8th,  9th,  and  10th 
sections  providing  for  such  taxation. 

Nor  does  the  7th  section  collide  at  all  with  the  8th,  9th, 
and  10th  sections.  The  7th  section  provides,  that  all  personal 
estate  shall  be  liable  to  taxation,  in  the  manner,  and  subject 
to  the  exemptions  in  the  act  specified,  at  the  full  and  actual 
value  thereof.  Now  the  first  property  exempted  in  the  act  is 
the  capital  stock  of  private  corporations  held  by  individuals, 
but  which  capital  stock  is  taxed  in  the  manner  prescribed  iu- 
the  8th  section,  to  wit,  at  par  upon  its  capital  paid  in.  The 
property  of  jwrsons,  consisting  of  stocks  in  private  corpora- 
tions, is  by  the  8th  section  taxed  in  this  manner,  to  wit,  by 
taxing  it  at  its  par  value  in  the  name  of  and  to  the  corpora- 
tions.  It  is  to  be  taxed  at  its  full  and  actual  value  in  the 
manner  sj>ecified  in  the  act,  and  the  manner  specified  in  the 
act  is  at  the  full  amount  of  the  capital  paid  in.  So  that  the 
7th  and  8th  sections  are  in  this  regard  in  perfect  accord. 

It  is  next  contended  that  this  construction  of  the  8th  sec- 
tion conies  in  collision  with  the  14th  section  of  the  same  act. 
This  14th  section  provides  that  it  shall  Ixj  the  duty  of  the 
assessors,  in  assessing  any  property  to  be  assessed  under  this 
act,  to  assess  and  value  such  property  at  its  full  and  fair 
value,  and  at  such  price  as  in  his  judgment  said  property 
would  sell  for  at  a  fair  and  bonn  fide  sale  by  private  con- 
tract, at  the  time  such  assessment  is  made ;  and  every  as- 
•OBor  shall  annex  to  his  duplicate  an  oath,  that  all  assess- 
ments in  it  have  l>een  made  according  to  the  requirements 
of  this  section.  Now  it  could  not  have  been  intended,  by 
the  h-gwlature,  that  the  last  clause  of  this  section  .should  be 
literally  construed,  for  it  is  impossible  that  the  assessment* 
required  by  the  6th  and  10th  sections  should  be  made  ac- 
cording to  the  requirements  of  the  14th  section.  The  legis- 


NOVEMBER  TERM,  1863.  419 


State  v.  Hallam. 


lature  could  only  have  intended,  by  the  last  clause  of  the 
section,  that  the  oath  of  the  assessor  should  cover  all  the 
duties  required  of  him  by  the  first  clause  of  the  section. 
When,  therefore,  the  legislature  required  that  the  assessor 
should  sAvear  that,  in  assessing  any  property  under  this  act, 
he  valued  such  property  at  its  true  value,  what  property  was 
in  the  eye  of  the  legislature?  Surely  not  the  stock  of  pri- 
vate corporations  in  the  hands  of  the  stockholders,  for  that 
was  free  from  taxation  by  the  very  terms  of  the  act.  Was 
it  the  capital  stock  of  private  corporations  assessed  as  against 
the  corporations  ?  Certainly  not,  for  two  reasons. 

First.  Because  the  legislature  had  already,  in  the  7th  sec- 
tion, provided  a  special  manner  of  taxing  that  upon  a  differ- 
ent principle  than  its  value;  and  it  is  against  every  principle 
of  construing  statutes,  that  when  a  special  matter  is  specially 
provided  for,  it  should  be  affected  by  a  subsequent  section 
embracing  more  general  matters. 

Secondly.  Because  the  said  14th  section  speaks  only  of  as- 
sessing property.  Now  the  capital  stock  of  a  corporation  in 
the  hands  of  the  stockholder  is  property,  but  in  the  hands  of 
the  corporation  it  is  not.  The  capital  stock  of  a  corporation 
in  the  hands  of  the  stockholders  is  no  more  the  property  of 
the  corporation  than  is  its  circulation.  It  is  the  debt  of  the 
corporation,  and  the  property  of  the  stockholders.  The  as- 
sessor, therefore  under  this  act,  in  assessing  the  corporation 
for  its  capital  stock,  is  no  more  assessing  property  than  he 
is  assessing  property  when  he  is  assessing  a  poll-tax.  Let 
us  test  this  a  moment.  If  the  capital  stock  of  a  corporation 
is  property,  and  is  to  be  assessed  at  its  value,  what  is  the 
assessor  to  assess  it  at?  What  is  its  value?  The  prosecu- 
tors say,  what  it  will  bring  in  market  or  at  private  sale.  But 
what  will  the  capital  stock  of  a  corporation  bring  in  the 
market  by  virtue  of  an  assessment  against  the  corporation? 
It  belongs  to  the  stockholders,  and  not  to  the  corporation. 
As  the  property  of  the  corporation,  it  is  obviously  valueless. 
No  value  can  be  assigned  to  it  as  the  property  of  the  corpo- 
ration. If  sold  as  the  property  of  the  corporation,  what 


420          NEW  JERSEY  SUPREME  COURT. 


State  v.  Ilallam. 


could  be  got  for  it?  What  would  the  purchaser  get?  This 
14th  section  does  not  therefore  apply  at  all  to  this  tax  on  the 
capital  stock  of  corporations,  but  only  to  property  of  indi- 
viduals and  corporations,  other  than  what  is  represented  by 
the  par  value  of  their  stock.  This  14th  section  has  relation 
only  to  the  second  object  of  taxation  named  in  the  first  section 
of  the  act,  viz.  to  tax  on  property,  and  not  to  the  first  and 
second  objects  of  taxation  therein  named,  to  wit,  natural  per- 
sons and  cor|>orations  or  artificial  persons.  It  is  evident  that 
the  legislature,  in  dealing  in  this  regard  with  corporations, 
was  treating  them  as  artificial  persons,  and  intending  the  tax 
on  them  to  be  in  the  nature  of  a  poll-tax.  It  is  a  tax  on  the 
poll,  or  head,  or  capital  of  the  corporation  ;  the  capital  being 
to  the  corporation  what  the  poll  or  head  is  to  the  private  indi- 
vidual. The  capital  is  to  the  artificial  person  what  the 
cfijmi  or  poll  is  to  the  natural  person.  The  prosecutors  com- 
plain that  this  is  unjust;  that  their  stock  has  depreciated  in 
value.  But  it  is  unjust  only  in  the  sense  that  every  jM>ll-tax 
is  unjust.  The  head,  poll,  or  caput  of  a  bachelor  is  taxed  at 
$2,  while  that  of  a  married  man  is  taxed  at  only  $1.  Is  the 
caput  of  one  double  the  value  of  the  other?  We  can  only 
say  the  legislature  HIC  void;  they  have  the  power  to  do  so,  and 
have  done  so.  There  is  nothing  unusual  in  this  principle  of 
taxation.  It  was  the  universal  one  in  this  state  prior  to  the 
act  of  1854. 

It  is  next  urged  that  it  is  not  to  be  presumed  that  the 
legislature  would  adopt  any  such  arbitrary  male  of  taxation 
towards  corporations.  We  are  not  quite  so  sure  of  that. 

The  increased  taxation  made  necessary  by  the  civil  war 
forced  the  legislature  to  l«x»k  around  for  additional  objects  of 
taxation.  For  popularity  sake,  they  would  naturally  look 
around  for  matters  of  taxation  that  would  occasion  as  little 
remark  as  jx>ssible.  The  increased  taxation  upon  individuals 
would  tend  to  excite  clamor  everywhere;  the  rich  corpo- 
ration'* had  also  power  to  resent  unequal  taxation,  but  the 
lame  and  fiickly  corporations  were  without  much  jH)wer  to 
clamor  or  resent.  They  were  without  cither  friends  or  sym- 
pathy, and  consequently  the  whole  community  would  unite 


NOVEMBER  TERM,  1863.  421 

State  v.  Hallam. 

in  the  justice  of  any  amount  of  taxation  on  them,  however 
unequal.  We  are  not  therefore  quite  certain  but  that  the 
legislature  intended  the  precise  thing  which  the  prosecutors 
have  with  so  much  force  and  eloquence  contended  that  they 
should  be  presumed  not  to  have  done.  The  particularity 
with  which  this  case  has  been  examined  was  due  to  the  large 
interest  involved. 

CITED  in  State,  People's  Fire  Ins.  Co.,  pros.,  v.  Parker,  Receiver,  6  Vr.  580 


THE  STATE,    THE   WASHINGTON    MANUFACTUEING    COM- 
PANY, PEOSECUTOES,  v.  THOMAS  HALLAM,  COLLECTOE. 

On  certiorari.     In  matter  of  taxation. 

THE  STATE,  THE  KAIGHN'S  POINT  FEEEY  COMPANY,  PEOS- 
ECUTOES, v.  WILLIAM  VANTIEE,  COLLECTOE. 

On  certiorari.     In  matter  of  taxation. 

THE  STATE,  THE  WEST  JEESEY  FEEEY  COMPANY,  PEOSE- 
CUTOES, v.  SAMUEL  I.  EUDDEEOW,  COLLECTOE. 

On  certiorari.     In  matter  of  taxation. 

THE  STATE,  THE  CAMDEN  AND  PHILADELPHIA  FEEEY 
COMPANY,  PEOSECUTOES,  v.  JAMES  H.  DENNY,  COL- 
LECTOE. 

On  certiorari.     In  matter  of  taxation. 

THE    STATE,    THE    CAMDEN    WATEE    WOEKS    COMPANY, 
PEOSECUTOES,  v.  EUDDEEOW,  COLLECTOE. 

On  certiorari.     In  matter  of  taxation. 

In  the  above  cases  the  assessments  to  be  reduced  as  in 
The  State  v.  Hallam,  ante  412. 

For  the  prosecutors,  A.  Browning. 

For  the  defendants,  J.  M.  Robeson  and  J.  M.  Scovel. 


422          NEW  JERSEY  SUPREME  COURT. 


State  v.  Drake. 


THE  STATE  v.  GEORGE  M.  DRAKE. 

L  An  indictment  under  the  act  of  1849,  (Nix.  Dig.  193,  2  103,)  for  causing- 
and  procuring  the  miscarriage  of  a  woman  then  pregnant  with  child, 
must  charge  that  the  defendant  did  the  acts  in  the  statute  specified, 
with  intent  to  cause  and  procure  the  miscarriage.  Both  words  must 
be  used  conjunctively,  in  order  to  charge  in  the  indictment  the  intent 
which  the  statute  makes  criminal. 

2.  A  charge  in  the  indictment,  that  the  defendant  administered  a  certain 
poison,  or  drug,  or  medicine,  or  noxious  thing,  is  bad,  because  it  does 
not  charge  that  he  administered  the  whole  of  the  prohibited  things, 
nor  any  one  of  them. 

On  certiorari  to  remove  indictment  for  a  misdemeanor. 

The  defendant  was  indicted  at  the  Sussex  Oyer  and  Ter- 
miner,  in  April  term,  1863,  for  procuring  the  miscarriage  of 
one  C.  L.  V. 

The  indictment  contained  four  counts. 

The  first  count  charged  that  the  defendant,  on  the  13th 
August,  1862,  at,  &c.,  maliciously  and  without  lawful  justi- 
fication, and  with  intent  to  cause  the  miscarriage  of  the  said 
C.,  a  single  woman,  who  then  and  there  was  pregnant  with 
child,  did  then  and  there  administer  unto  her,  the  said  C.,  a 
certain  drug,  medicine,  or  noxious  thing,  to  the  jurors  un- 
known, and  that  the  said  C.  did  afterwards,  to  wit,  on,  &c., 
at,  &c.,  die  in  consequence  of  the  said  administration  of  the 
said  drug,  medicine,  or  noxious  thing  so  administered  to  her 
by  the  said  defendant,  contrary  to  the  form  of  the  statute,  &c. 

The  second  count  charged  that  the  said  defendant,  on,  <fcc., 
at,  &c.t  to  one  C.,  a  nn^le  woman,  who  then  and  there  was 
pregnant  with  child,  with  intent  to  procure  the  miscarriage 
of  the  said  C.,  did  prescribe  for  her,  and  advise  and  direct 
her  to  take  and  swallow  a  certain  other  poison,  <lrug,  medi- 
cine, or  noxious  thing,  and  that  in  consequence  of  her  taking 
and  swallowing  the  said  poison,  drug,  medicine,  or  noxious 
tiling  she  died. 


NOVEMBER  TERM,  1863.  423 


State  v.  Drake. 


The  third  count  charged  that  the  said  defendant,  with  in- 
tent to  procure  the  miscarriage  of  the  said  0.,  a  certain  instru- 
ment, to  the  jurors  unknown,  did  there  and  then  use,  in  con- 
sequence whereof  she  died. 

The  fourth  count  charged  that  a  certain  person,  to  the 
jurors  unknown,  in  and  upon  the  said  C.,  &c.,  then  and  there 
maliciously,  and  without  lawful  justification,  a  certain  other 
instrument  or  means,  to  the  jurors  unknown,  did  use,  with 
intent  to  procure  the  miscarriage  of  the  said  C.,  and  that  the 
said  C.,  in  consequence  of  such  use  of  the  said  instrument  or 
means,  did  afterwards,  &c.,  die,  and  that  the  said  defendant 
did  then  and  there,  with  the  like  intent  to  procure  the  mis- 
carriage of  the  said  C.,  aid  and  assist  the  aforesaid  person  in 
the  said  use  of  the  said  instrument  or  means,  contrary  to  the 
form  of  the  statute,  &c. 

The  indictment  having  been  removed  into  this  court  by 
certiorari,  the  counsel  of  the  defendant  moved  to  quash,  on 
the  ground  that  the  same  was  vague  and  defective,  and 
charged  no  specific  crime. 

For  the  motion,  R.  Hamilton. 

The  indictment  is  founded  on  the  statute  of  March  1st, 
1849.  It  is  not  sustainable  at  common  law,  because  it  is  not 
alleged  that  the  child  was  quick.  State  v.  Cooper,  2  Zcib.  52. 

An  indictment  under  the  statute  must  contain  all  the  in- 
gredients given  by  the  statute  to  make  up  the  offence. 

The  counts  are  all  insufficient. 

First  count. 

1.  This  does  not  charge  that  the  offence  was  committed 
with  the  intent  to  cause  and  procure  the  miscarriage,  which 
is  the  language  of  the  statute;  but  it  charges  it  to  have  been 
committed  simply  with  intent  to  cause  it.  The  words  are  in 
the  conjunctive,  not  the  alternative.  All  the  words  which 
to  go  constitute  the  offence  must  be  used.  No  case  is  to 
be  brought  by  construction  within  a  statute,  while  it  falls 


424          NEW  JERSEY  SUPREME  COURT. 


State  v.  Drake. 


not  within  all  its  words.     1  Bishop's  Or.  Law,  §  134;  Whart. 
364,  bth  edit. 

So  are  the  precedents.  They  charge  the  intent  to  be  to 
cause  and  procure.  3  Chit.  Cr.  L.  797 ;  State  v.  Gibbons,  1 
South.  40-48 ;  1  Whart.  C.  L.  364,  and  notes. 

2.  It  is  not  charged,  in  the  language  of  the  statute,  that 
the  poison  was  administered  to  her  to  take  or  swallow,  and 
hence  it  does  not  meet  the  requirements  of  the  statute. 

The  case  of  The  SUite  v.  Murphy,  3  Dutcher  112,  decided 
that  it  is  not  necessary  to  prove  an  actual  taking  or  swallow- 
ing, but  the  offence  consists  in  its  being  given  for  that  pur- 
pose. 

The  allegation  that  the  party  afterwards  died  in  conse- 
quence of  the  administering  of  the  drug,  does  not  cure  the 
want  of  a  positive  averment.  1  Chitty's  C.  L.  231. 

3.  The  count  is  insufficient  in  charging,  in  the  alternative, 
a  certain  drug,  medicine,  or  noxious  thing. 

The  statute  makes  either  an  offence,  yet  it  must  be  specifi- 
cally charged  which  one  was  used,  so  that  the  defendant  may 
be  prepared  to  aaswer.  1  Chit.  C.  L.  231 ;  Whart.  C.  L., 
6th  edit.,  285,  §  2,  and  notes  3,  294,  295,  296,  299,  to  304. 

Second  count. 

This  is  subject  to  the  first  objection  taken  to  the  first  count. 
The  charge  is,  with  intent  to  procure,  instead  of  cause  and 
procure.  It  is  also  in  the  disjunctive  "  that  a  certain  other 
poison,  drug,  medicine,  or  noxious  thing  was  prescribed,"  <fcc. 
1  Chit.  C.  L.  231.  It,  is  faulty,  also,  in  not  stating  positively 
that  the  thing  prescribed  was  taken  and  swallowed.  It  is 
only  stated  argumentative))-. 

Third  count. 

In  this  count  the  death  of  C.  is  charged.  The  indictment 
charges  that  the  defendant,  a  certain  instrument  unknown  did 
UJKHI  one  C.  use,  and  in  consequence  thereof  she  died.  It  is 
not  stated  what  kind  of  instrument,  nor  how  or  where  it  was 
used,  or  whether  any  injury  was  inflicted  by  the  instrument, 
or  that  any  injury  received  caused  her  death.  These  are 
neroiHiry  to  enable  the  ]>arty  to  make  defence. 


NOVEMBER  TERM,  1863.  425 

State  v.  Drake. 

Fourth  count. 

This  charges  that  a  certain  person  unknown,  a  certain  in- 
strument or  means  unknown  did  use  with  intent  to  procure 
the  miscarriage  of  the  said  C.,  and  in  consequence  of  the  use 
of  such  instrument  or  means  she  died;  and  that  the  defend- 
ant, with  the  like  intent  to  produce,  &c.,  did  knowingly  aid 
and  assist  in  the  use  of  said  instrument  or  means.  It  is  liable 
to  most  of  the  objections  urged  against  the  other  counts,  and 
cannot  be  sustained. 

For  the  state,  contra,  C.  S.  Leport. 

The  opinion  of  the  court  was  delivered  by 

VAN  DYKE,  J.  This  indictment  is  framed  under  the  sup- 
plement of  March  1st,  1849.  So  much  of  it  as  is  material 
to  this  inquiry  is  as  follows :  "  If  any  person  or  persons  ma- 
liciously or  without  lawful  justification,  with  intent  to  cause 
and  procure  the  miscarriage  of  a  woman  then  pregnant  with 
child,  shall  administer  to  her,  prescribe  for  her,  or  advise  or 
direct  her  to  take  or  swallow  any  poison,  drug,  medicine,  or 
noxious  thing;  and  if  any  person  or  persons,  maliciously 
and  without  lawful  justification,  shall  use  any  instrument  or 
means  whatever  with  the  like  intent,  and  every  person  witli 
the  like  intent,  knowingly  aiding  and  assisting  such  offender 
shall,  on  conviction,"  &c. 

The  indictment  contains  four  counts,  and  the  motion  is 
made  to  quash  the  whole  of  them.  They  are  all  subject  to 
the  same  objection.  To  make  the  transactions  mentioned 
criminal  under  the  statute,  it  is  necessary  that  they  should 
have  been  done  with  intent,  to  cause  and  procure  the  mis- 
carriage of  a  woman  then  pregnant,  &c.  These  words,  cause 
and  procure,  are  not  used  in  any  of  the  counts.  They  seenr 
to  have  been  purposely  kept  apart,  for  the  word  cause  is 
used  in  the  first  count,  and  the  word  procure  in  each  of  the 
other  three.  This  objection  seems  to  me  to  be  fatal,  for  it  is 
the  intent  with  which  the  thing  is  done  that  makes  it  crimi- 
nal at  all.  That  intent,  to  become  criminal,  must  be  to 


426          NEW  JERSEY  SUPREME  COURT. 

State  v.  Drake. 

cause  and  procure  a  miscarriage.  The  statute  has  not  made 
the  intent  to  cause  or  procure  sufficient,  which  would  have 
justified  the  use  of  either  wort!  alone ;  but  it  has  connected 
the  two  together,  and  made  a  conjunction  of  both  necessary 
to  constitute  the  crime.  If  both  words  are  not  used,  then 
the  intent,  which  the  statute  makes  criminal,  is  not  charged 
in  the  indictment,  and  of  course  there  is  no  crime  charged. 
The  only  plausible  answer  that  can  be  given  to  this  objection 
is,  that  both  words  mean  substantially  the  same  tiling,  and 
therefore  the  use  of  l>oth  are  not  necessary.  But  the  law 
has  long  since  prohibited  both  courts  and  prosecutors,  from 
speculating  on  the  meaning  of  words  used  in  creating  penal 
btatutes,  either  by  instituting  analogies  or  otherwise.  The 
legislature  has  said  that  both  words  are  necessary  to  constitute 
crime,  and  it  is  not  for  us  to  say  that  one  is  enough  for  the 
pur|M)se.  This  would  l>e  making  the  law  different  from  what 
the  law  making  j>owcr  has  made  it;  and  if  we  can  do  it  in 
this  (use,  in  what  fuse  may  we  not  do  it;  and  if  we  may  do 
so  in  this  rourt,  what  court  may  not  try  the  exj>eriment ;  and 
if  a  pr<h*riitor  IHMV  lawfully  omit  one  of  the  words  which 
emit « -s  an  ofiViuv,  on  tin-  ground  of  its  being  analogous  to 
another  word  already  introduced,  why  may  he  not  omit  all 
the  words  which  go  to  characterize  the  oflence  as  criminal, 
and  substitute  other  words  which  might  be  supj>osed  to  have 
about  the  same  meaning.  This,  I  apprehend,  has  never  been 
jiermitted,  and  never  should  be. 

The  law  on  this  subject  seems  to  be  very  well  settled. 
Bishop,  in  the  first  volume  of  his  work  on  Criminal  Law,  § 
134,  lays  down  the  rule  broadly  but  positively.  In  speaking 
of  penal  statutes,  he  says,  that  "  no  case  is  to  be  brought  by 
construction  within  the  statute  while  it  falls  not  within  all 
it*  words.  If  a  ease  is  fully  within  the  mischief  to  be  reme- 
died, if  not  within  the  words,  construction  will  not  be  per- 
mitted to  bring  it  within  the  statute."  The  doctrine  thus 
enunciated  is  sustained  by  many  cases  there  cited.  It  is 
MMind  and  salutary,  as  well  as  safe,  and  should  not  be  de- 
parted from.  If  we  once  admit  such  a  practice  in  the 


NOVEMBER  TERM,  1863.  427 

State  v.  Drake. 

framing  of  indictments,  there  is  no  telling  where  it  will  end. 
We  should  not  permit  it  to  begin.  No  one  can  certainly  tell 
what  precise  meaning  the  legislature  intended  to  attach  to 
those  words  which  they  have  used.  This  principle  is  strongly 
sustained,  moreover,  in  the  case  of  The  State  v.  Gibbons,  \ 
South.  40. 

The  first,  second,  and  fourth  counts  are  subject  to  another 
objection,  quite  as  serious  as  the  one  just  considered.  The 
means  or  things  made  use  of  to  produce  the  miscarriage  are 
all  charged  disjunctively,  that  is  to  say,  it  is  charged  hi  sub- 
stance in  these  counts,  that  the  defendant  did  administer,  &c., 
to  the  female  a  certain  poison  or  drug  or  medicine  or  noxious 
thing  to  the  jurors  unknown.  This  must  certainly  be  bad, 
for  two  reasons :  first,  it  charges  the  defendant  with  nothing 
in  direct  and  express  terms.  It  does  not  charge  that  he  ad- 
ministered the  whole  of  the  prohibited  things,  nor  any  one  of 
them,  but  charges  that  he  did  one  thing  or  another,  or  another, 
which  can  mean  nothing;  secondly,  it  does  not  apprize  the 
defendant  against  what  he  is  to  defend  himself.  The  infer- 
ence from  the  language,  as  used,  is  not  that  he  employed  all 
the  prohibited  articles  and  means,  but  that  he  used  some  one 
of  them,  but  which  it  was  the  grand  jury  did  not  know,  and 
did  not  say,  consequently  they  have  left  the  defendant  in  as 
much  doubt  as  they  were  themselves. 

The  law,  on  the  subject  of  making  these  charges  disjunc- 
tively instead  of  conjunctively,  seems  also  very  well  settled. 
The  rule  is  laid  down  in  Wharton's  Crim.  Law,  page  364, 
very  explicitly,  and  it  is  sustained  by  numerous  authorities, 
that  the  disjunctive  form  is  not  sufficient. 

I  think,  therefore,  that  the  indictment  should  be  quashed. 

Indictment  quashed. 

CITED  in  State  v.  Malloy,  Same  v.  Adams,  5  Vr.  414. 


428          NEW  JERSEY  SUPREME  COURT. 


State  v.  Haight. 


THE  STATE,  THE  NEW  YORK  AND  ERIE  RAILROAD  COM- 
PANY  AND  NATHANIEL  MARSH,  PROSECUTORS,  v.  JOHN 
B.  HAIGHT,  COLLECTOR,  ETC.,  FOR  JERSEY  CITY. 

Ferry  boats,  owned  by  a  foreign  corporation,  enrolled  in  the  New  York 
custom  house,  used  for  carrying  freight  and  passengers  between  Jersey 
City  and  New  York,  and  having  no  permanent  location  in  Jersey 
.City,  are  not  liable  to  be  taxed  there ;  such  property  cannot  be  said 
to  be  situate  in  any  township  or  ward. 


Certiarari.     In  matter  of  taxation. 

Certain  ferry  boats,  owned  by  the  New  York  and  Erie 
Railroad  Company,  and  plying  between  New  York  and  Jer- 
sey City,  were  assessed  by  the  authorities  of  Jersey  City  as 
property  subject  to  taxation.  It  appeared  they  belonged  to 
a  foreign  corporation,  and  were  regularly  enrolled  in  the  cus- 
tom house  in  New  York. 

The  prosecutors  sought  to  set  aside  the  assessment,  for  the 
following  reasons : 

1.  That  the  said  ferry  boats  should  be  taxed  in  New  York, 
and  not  in  this  state. 

2.  That  they  were  taxed,  during  the  period  covered  by  the 
assessment  now  complained  of,  in  the  city  of  New  York,  and 
the  tax  was  paid  in  that  jurisdiction. 

3.  That  said  ferry  boats  were  registered  in  the  custom-house 
of  the  city  of  New  York,  and  district  of  New  York,  being  the 
district  which  comprehended  the  port  to  which  the  boats  be- 
longed, at  the  time  of  said  assessment  for  tax,  and  have  thence 
continued  to  be  so  registered. 

4.  That  a  valuation   was  not  put  on  each  boat,  and  the 
MMflBment  is  uncertain  and  void. 

For  the  prosecutors,  I.  W.  Scudder. 
For  the  defendant,  R.  D.  McCleUund. 

The  opinion  of  the  court  was  delivered  by 

VAN  DYKE,  J.    The  cfrtiorari  in  this  case  brings  up  for 


NOVEMBER  TERM,  1863.  429 

State  v.  Haight. 

consideration  an  assessment  and  taxation,  by  the  authorities 
of  Jersey  City,  on  the  ferry  boats  of  the  New  York  and 
Erie  Railway  Company,  which  ply  between  New  York  and 
Jersey  City.  These  boats  are  all  owned  by  a  corporation 
belonging  to,  and  chartered  by  the  state  of  New  York.  They 
are  all  enrolled  in  the  custom  house  in  the  city  of  New  York ; 
and  they  are  used  for  carrying  passengers,  freight,  &c.,  be- 
tween that  city  and  Jersey  City,  some  of  which  is  of  a  local 
character;  but  most  of  their  business,  it  is  supposed,  is  in 
connection  with  the  Erie  railway  itself.  None  of  the  boats 
appear  to  have  been  built  in  this  state,  nor  to  have  any  per- 
manent location  here,  except  that  they  lie  at,  and  are  fastened 
to  the  piers  on  this  side,  long  enough  to  deliver  and  receive 
their  passengers  and  freight,  or  to  wait  for  their  arrival,  and 
in  a  few  instances,  one  or  more  of  them  have  remained  on  this 
side  long  enough  to  receive  repairs. 

Our  act  relative  to  taxes  directs,  that  when  the  owner  of 
personal  property  shall  be  a  nonresident  of  this  state,  such 
property  shall  be  taxed  in  the  township  or  ward  where  the 
same  may  be  situate;  but  I  am  unable  to  see  how  these  steam- 
boats can  be  considered  as  being  situated  in  the  state  of  New 
Jersey  at  all.  The  personal  estate  of  foreign  owners,  to  be 
so  situated  as  to  be  subject  to  taxation  within  the  meaning 
of  the  act,  must  have  some  permanent  location  here,  for  the 
time  being  at  least.  It  cannot  be,  I  think,  that  all  the  ves- 
sels belonging  in  other  states,  and  owned  by  citizens  thereof, 
visiting  our  shores,  but  never  coming  upon  them  daily  and 
several  times  a  day,  and  returning  back  again  as  often  as 
they  come,  can  be  considered  as  situated  here.  The  estab- 
lishment of  the  principle  contended  for  by  the  assessor  in 
this  case  would  seem  to  authorize  him  in  assessing  every- 
thing that  he  can  find  within  his  official  limits  at  any  time 
while  making  his  assessments;  which  would  render  it  unsafe 
for  a  stranger jto  our  soil  to  visit  it  with  his  property  during 
that  time.  The  law  does  not  contemplate  any  such  thing. 
It  is  only  intended  to  tax  such  personal  property  of  foreign- 
ers, as  is  actually  located  or  used  within  the  state  with  some- 

VOL.  I.  2  D 


430          NEW  JERSEY  SUPREME  COURT. 

Stall  v.  Fulton. 

thing  like  |>ermanency,  and  not  having  its  actual  location  or 
home  somewhere  else.  These  boats  have  no  actual  location 
or  place  of  residence,  so  to  speak,  in  this  state;  but  they  have 
a  location  and  home  in  the  *tate  of  New  York,  and  cannot,  I 
think,  in  any  sense,  be  considered  as  belonging  here  as  the 
objects  of  taxation  by  us. 

I  do  not  think  it  wise,  either  as  a  matter  of  comity  or  of 
policy,  to  press  these  border  questions,  when  they  contain  any 
considerable  amount  of  doubt.  They  are  certainly  calculated 
to  provoke  retaliatory  proceedings  on  the  other  side;  and  if 
we  may  tax  the  ferry  boats  of  the  Erie  company,  I  do  not  see 
why  New  York  may  not  also  tax  the  ferry  boats  of  the  Xew 
Jersey  Railroad  Company.  One  hostile  act  of  the  kind  is 
quite  likely  to  produce  another,  and  in  this  way  much  bad 
feeling  and  bad  neighborhood  will  be  engendered.  Friendly 
feeling  and  pleasant  intercourse  with  our  neighbors,  and 
especially  with  our  sister  states,  should  by  all  means  be  culti- 
vated, and  all  proceedings  calculated  to  produce  the  contrary 
should  be  avoided,. if  possible. 

I  think,  therefore,  these  assessments  should  be  set  aside. 

Assessments  set  aside. 


HERMAN  STALL  v.  JOHN  M.  FULTON  AND  SUSAN  HIS 

WIFE. 

1.  Under  the  M  nection  of  the  art  of  March,  !So2,  AT«.  Dig.  503,  for  the 
bettor  Hecuring  the  projK-rty  of  married  women,  a  married  woman  can 
receive  to  her  sole  use  a  deed  lor  lands  for  a  term  of  years. 

2.  When  mich  a  deed  expn-sses  on  it*  face  that  the  consideration  was 
paid  by  the  wife,  the  presumption  is  that  the  consideration  was  her 
own  money. 

3.  The  creditors  of  the  husband,  under  judgment  and  execution  against 
him  ujx>n  a  caote  of  action  arising  anterior  to  the  deed,  cannot  get  a 
title  at  law,  a*  against  the  wit'./,  HO  a*  to  maintain  ejectment  against 
the  hwdrand  and   wife,  nor  turn   her  out  of  |M«sem(on.     The  whole 
legal  title  remain*  in  the  wif«-  by  force  of  the  statute,  even  if  the  con- 
sideration money  of  the  deed  was  the  projterty  of  the  himband. 

4.  The  earnings  of  the  wife,  upon  express  promises  to  pay  her,  belong  to 


NOVEMBER  TERM,  1863.  431 


Stall  v.  Fulton. 


her,  and  not  to  her  husband,  until  he  does  some  act  with  intent  to 
reduce  them  into  possession  ;  and  if  he  dies  first,  they  survive  to  the 
wife ;  and  if  with  such  proceeds  she  buys  land,  and  the  deed  is  made 
to  her  before  the  conversion  by  the  husband,  the  land  belongs  to  her 
and  cannot  be  seized  and  sold  by  his  creditors  under  judgments  against 
him. 

5.  The  husband  is  not  obliged,  nor  is  he  guilty  of  any  fraud  against 
creditors,  if  he  does  not  convert  to  his  or  their  use  the  earnings  of  the 
wife. 


Ejectment  to  recover  twenty-four  lots  of  land  in  the  City 
of  Elizabeth,  in  the  county  of  Union.  Issue  having  been 
joined,  and  the  cause  set  down  for  trial,  the  parties  agreed 
upon  the  following  statement  of  facts,  on  which  the  case  was 
afterwards  argued  before  the  court  at  bar. 

This  suit  is  brought  to  recover  possession  of  twenty-four 
lots  of  land,  in  the  City  of  Elizabeth,  known  as  lots  Nos.  1 
to  24,  both  inclusive,  on  Block  No.  34,  as  marked  on  a  map 
of  the  new  manufacturing  town  of  Elizabeth  Port,  New  Jer- 
sey. 

At  the  date  of  the  demise  laid  in  the  declaration,  George 
Whitsell  and  John  Atbrhlge  occupied  a  portion  of  said 
premises,  as  tenants  of  John  M.  Fulton  and  Susan  his  wife, 
or  as  tenants  of  the  wife  alone. 

The  deed  for  the  premises  in  question  was  given  to  Susan 
Fulton,  the  wife  of  John  M.  Fulton,  and  the  estate  thus  held 
is  a  chattel  real,  being  the  unexpired  portion  of  a  term  of 
thirty  years,  for  which  said  premises  had  been  legally  sold 
for  the  nonpayment  of  taxes,  by  virtue  of  an  act  of  the  legis- 
lature, entitled  "  an  act  to  make  taxes  a  lien  upon  real  estate 
in  the  township  of  Elizabeth,  in  the  county  of  Essex,  and  to 
authorize  the  sale  of  the  same  for  the  payment  thereof," 
approved  February  llth,  1847. 

In  1849,  and  before  the  said  sale,  the  fee  of  the  premises 
in  question  was  in  one  Charles  D.  Robinson,  and  the  term 
now  held  by  Susan  Fulton  was  created  by  a  public  sale  of 
said  premises,  made  by  William  Condell,  a  constable  of  the 


432          NEW  JERSEY  SUPREME  COURT. 


Stall  v.  Fulton. 


township  of  Elizabeth,  by  virtue  of  a  tax  warrant  to  Augus- 
tus Kellogg  who  became  by  said  sale  the  purchaser  of  a 
term  of  thirty  years  (30)  in  said  lots,  in  consideration  of  his 
paying  the  taxes  assessed  against  them  for  which  they  were 
sold,  and  also  the  costs,  fees,  charges,  and  expenses  attending 
the  sale  of  said  lots. 

The  term  or  estate  thus  created,  was  conveyed  to  said  Au- 
gustus Kellogg  by  the  deed  of  said  William  Condell,  consta- 
ble, bearing  date  March  loth,  1857,  and  was  recorded  in  the 
clerk's  office  of  the  county  of  Essex,  in  Book  O  7  of  Deeds 
for  said  county,  in  page  343,  and  the  sale  to  him  by  said 
Condell  was  regular  and  legal  in  form  and  substance. 

By  dee*l,  dated  September  26th,  1853,  and  recorded,  Feb- 
ruary 1st,  1858,  in  the  clerk's  office  of  Union  county,  in 
Book  No.  2  of  Deeds,  in  pages  512,  &c.,  the  said  Augustus 
Kellogg  conveyed  all  his  right,  interest,  and  estate  in  said 
premises  to  Susan  Fulton,  wife  of  John  M.  Fulton,  defend- 
ant in  this  suit,  for  the  consideration  of  one  hundred  and  fifty 
dollars.  There  was  a  written  agreement,  between  Augustus 
Kellogg  and  John  M.  Fulton,  respecting  the  purchase  of 
Kellogg's  interest  and  estate  in  the  premises  in  question, 
signed  by  said  Kellogg. 

Since  the  conveyance  to  Mrs.  Fulton,  three  buildings  (resi- 
dences) have  been  erected  on  said  lot. 

The  consideration  for  the  lots,  and  for  the  improvements 
subsequently  put  upon  them,  was  furnished  mainly  from  the 
proceeds  of  the  labor  and  industry  of  Susan  Fulton  and  her 
daughters  (under  twenty-one  years  of  age),  in  connection 
with  hired  girls  and  apprentices;  but,  from  1858  to  1860, 
John  M.  Fulton  assisted  at  the  business  in  which  his  wife 
and  daughters  were  engaged,  which  was  manufacturing,  and 
giving  out  to  manufacture  articles  of  clothing,  chiefly  vests; 
but,  previously  to  1858,  his  only  connection  with  the  busi- 
iiew*  was  in  going  to  and  from  New  York,  bringing  out  and 
returning  the  work  manufactured  by  hi*  wife  and  daughters. 
From  1858  to  1860,  in  addition  to  going  and  returning  from 


NOVEMBER  TERM,  1863.  433 


Stall  v.  Fulton. 


New  York  in  taking  charge  of  said  work,  he  personally 
superintended  the  business  at  their  place  of  residence  in  Eliz- 
abeth. 

On  the  19th  day  of  July,  1859,  the  plaintiff  recovered  a 
judgment  in  the  Supreme  Court  of  New  Jersey,  against  the 
said  John  M.  Fulton,  for  $1217.60  debt,  and  $32.30  costs, 
founded  on  the  record  of  a  judgment,  recovered  against  the 
said  defendant  by  the  said  plaintiff,  in  the  Supreme  Court  of 
the  State  of  New  York,  in  the  county  of  Duchess,  June  19th, 

1857,  which  said  last  named  judgment  was  founded  on   a 
contract  made  prior  to  the  purchase  of  the  aforesaid  lots. 

By  virtue  of  an  execution,  duly  and  regularly  issued  and 
recorded  upon  the  first  named  judgment,  the  sheriff  of  the 
•county  of  Union  levied  upon,  advertised,  and  on  the  24th 
•day  of  August,  1860,  sold  at  sheriff's  sale,  the  estate  and 
interest  of  John  M.  Fulton  in  the  said  premises  to  Hermau 
Stall,  the  plaintiff  in  this  suit,  for  the  consideration  of  $49 ; 
and  a  deed  for  the  estate  and  interest  of  said  John  M.  Fulton, 
dated  August  24th,  1860,  was  by  the  said  sheriff  delivered  to 
said  Herman  Stall,  on  the  31st  day  of  August,  1860,  and 
duly  recorded  in  the  clerk's  office  of  Union  county,  in  Book 
7  of  Deeds,  pages  95,  &c.,  on  the  7th  day  of  September, 
1860. 

If,  upon  the  whole  case,  the  Supreme  Court  think  that 
judgment  should  be  entered  for  the  plaintiff,  then  it  is  agreed 
that  judgment  shall  be  entered  for  the  plaintiff,  and  if  for  the 
defendants,  then  judgment  shall  be  entered  for  the  defend- 
-ants. 

WILLIAM  F.  DAY,  att'y  of  defendants. 
E.  W.  RUNYON,  att'y  of  plaintiff. 

For  plaintiff,  M.  Beasley. 

The  premises  in  dispute  were  conveyed  to  Mr.  Fulton  by 
deed,  dated  September  26th,  1853,  and  recorded  1st  July, 

1858.  One  Augustus  Kellogg  made    the   conveyance,  by 
virtue  of  an  article  of  an  agreement  with  Mr.  F.,  the  husband. 
The  consideration  of  the  lots,  and  the  improvements  subse- 


434  NEW  JERSEY  SUPREME  COURT. 

Stall  v.  Fulton. 

quently  put  upon  them,  was  mainly  the  labor  of  wife  and 
her  infant  daughters. 

The  plaintiff  claims  under  sheriff's  deed  of  31st  August, 
1860,  by  virtue  of  a  judgment  against  Fulton,  the  husband, 
obtained  in  the  Supreme  Court,  19th  July,  1859.  This  judg- 
ment was  founded  on  a  judgment  in  New  York,  obtained 
19th  June,  1857,  and  which  was  upon  a  contract  made  prior 
to  the  purchase  of  the  lots. 

The  subject  matter  of  dispute  is  the  term  of  years,  which  is 
a  chattel  real. 

I.  Chattels  real  vest  in  the  husband.     Claneey's  Husb.  and 
Wife  2;  2  Kent's  Com.  134. 

Husband  may  bar  the  interest  of  wife  by  assignment,  with 
or  without  consideration.  Clanccy  104. 

They  have  this  peculiarity — they  do  not  admit  or  stand  in 
need  of  being  reduced  into  possession ;  they  are  already  in 
possession.  Ibid.  104. 

At  common  law,  the  property  was  liable  to  execution 
against  husband.  The  only  question  is,  is  the  pro|>erty  pro- 
tected under  our  statute  respecting  the  property  of  married 
women.  JSTr.  Diy.  503,  acts  of  1852. 

II.  What  is  the  construction  of  the  act? 

Its  design  is  to  protect  the  property  of  married  women.  It 
is  not  to  enable  them  to  take  property,  which  before  the  pas- 
sage of  the  act  the  law  prevented  them  from  holding. 

It  is  a  remedial  statute.  The  old  law  permitted  the  hus- 
band and  his  creditors  to  take  the  pro|>erty  of  the  wife. 
This  was  the  evil ;  the  remedy  is  to  protect  that  property  for 
her. 

III.  This  statute  can  have  no  application  to  this  case. 
The  attempt  here  is  to  secure  the  property  of  the  husband 

to  the  use  of  the  wife. 

The  act  secures  hers — this  application  would  secure  his. 

This  term  is  the  husband's  property. 

Every  dollar  which  went  to  JKIV  for  the  land  and  for  the 
buildings  was  his. 

The  earnings  of  the  wife  belong  to  him  absolutely. 


NOVEMBER  TERM,  1863.  435 


Stall  v.  Fulton. 


The  statute  has  not  altered  the  law  in  this  respect.  Clan- 
cey's  Hush,  and  Wife  3  ;  1  Parsons  on  Cont.  286. 

They  must  be  sued  for  in  the  name  of  husband  alone. 
Ibid. 

So  completely  are  her  earnings  his  property,  that  he  can- 
not give  them  to  her  as  against  creditors.  2  Story's  Eq. 
Jurisp.,  §  1387. 

At  the  time  of  the  gift  in  this  case,  this  debt  had  been  in- 
curred. 

A  debt  is  void  as  against  existing  debts  at  time  of  gift.  1 
Am.  Lead.  Gas.  40,  Sexton  v.  Wheaton. 

The  same  construction  is  given  in  Mississippi.  30  Miss.  589, 
Sharp  v.  Maxwell;  27  Miss.  830,  Henderson  v.  Warmach. 

For  defendant,  B.  Williamson. 

The  opinion  of  the  court  was  delivered  by 

VHEDENBTJRGH,  J.  This  ejectment  is  brought  to  recover 
possession  of  24  lots  in  the  City  of  Elizabeth.  The  plaintiff 
claims  title,  by  virtue  of  a  judgment,  on  a  cause  of  action 
arising  before  the  deed  to  Mrs.  Fulton,  herein  after  men- 
tioned, against  the  husband,  and  a  deed  under  such  judgment, 
dated  the  31st  of  August,  1860.  This  (the  defendants  being 
in  possession),  prima  facie,  entitles  the  plaintiff  to  recover. 

The  wife  sets  up,  by  way  of  defence,  a  deed  to  her  from 
the  former  owner,  dated  the  26th  of  September,  1853,  for  a 
term  of  thirty  years.  But  at  the  common  law  this  would 
vest  in  the  husband  during  their  joint  lives,  and  thus  far  be 
liable  for  his  debts.  Clancey's  Husb.  and  Wife  9,  10. 

But  the  wife,  in  further  defence,  sets  up  the  act  of  the 
legislature,  passed  on  the  25th  of  March,  1852,  Nix.  Dig. 
503.*  The  deed  to  the  wife  is  dated  a  year  after  this  act 
went  into  effect,  and  while  she  was  a  married  woman.  It  is 
therefore  affected  by  its  provisions.  The  3d  section  of  this 
act  provides"  "  that  it  shall  be  lawful  for  any  married  female 
to  receive,  by  gift,  grant,  devise,  or  bequest,  and  hold  to  her 

*Eev.,  p.  636. 


436  NEW  JERSEY  SUPREME  CX3URT. 


Stall  v.  Fulton. 


sole  and  .separate  use,  as  if  she  were  a  single  female,  real  and 
personal  property,  and  the  rents,  issues,  and  profits  thereof; 
and  the  same  shall  not  be  subject  to  the  disposal  of  her  hus- 
band, nor  be  liable  for  his  debts." 

It  was  decided  by  this  court,  in  the  case  of  Rosa  v.  Adams, 
4  Dutclier  160,  that  the  term  grant,  in  the  act,  included  this 
species  of  conveyance.  This  case,  then,  is  that  of  a  married 
woman  receiving  a  term  of  y ears  by  grant,  and  the  statute 
says,  in  terms,  that  it  shall  not  be  liable  for  her  husband's 
debts. 

This,  therefore,  is  a  complete  defence,  unless  the  plaintiff 
can  show  that  it  is  outside  of  the  provisions  of  this  statute. 
The  plaintiff  attempts  to  do  so,  by  alleging  that  this  term  of 
years  was  paid  for  with  the  husband's  money,  and  that  on 
that  account  the  statute  does  not  oj>erate  on  the  grant,  and 
that  the  title  passes  through  the  wife  to  the  husband  the  same 
as  it  would  at  common  law,  and  as  if  this  statute  had  never 
been  passed. 

In  the  first  place — supjK>se  the  wife  did  pay  for  this  land 
with  the  money  of  her  husband,  so  as  to  defraud  his  credit- 
ore,  how  does  it  affect  the  question  at  law  ?  Can  the  plaintiff 
maintain  ejectment,  br  is  his  remedy  in  a  court  of  equity? 
By  the  common  law,  the  title  flows  from  the  vendor  to  the 
wife,  and  through  her  to  her  husband.  The  husband  gets 
no  title  from  the  vendor.  All  the  title  he  gets  is  what  flows 
through  the  wife  to  him. 

The  statute  does  not  prevent  the  title  passing  from  the 
vendor  to  the  wife:  the  whole  title  passes  out  of  the  vendor 
into  the  wife,  the  same  as  if  no  statute  had  l>een  ]tnsscd. 
The  statute  only  oj>onit<'s  on  the  title  when  it  reaches  the 
wife.  It  then  immediately  attaches  to  the  title  in  the  wife's 
hand*,  and  stojw  ite  further  passage.  The  channel  by  which 
it  passed  at  common  law  from  the  wife  to  the  husband  is 
hermetically  sealed  by  the  statute.  The  statute  says  the 
wife  may  receive  and  hold  it  to  her  separate  use  as  a  single 
female ;  and  that  it  shall  not  l>e  .subject  to  the  disi>osal  of 
her  hiiHlmnd,  nor  be  liable  for  his  debts.  The  channel 


NOVEMBER  TERM,  1863.  437 

Stall  v.  Fulton. 

through  which,  therefore,  the  plaintiff  claims  that  the  husband 
got  his  title,  is  blocked  up  by  the  statute.  It  could  get  no 
further  than  the  wife. 

The  common  law,  under  which  a  joint  estate  for  life  in 
chattels  real  of  the  wife  were  vested  in  the  husband,  was  re- 
pealed by  the  statute.  The  title  therefore  passed  from  the 
vendor  to  the  wife  by  virtue  of  the  deed,  and  the  statute 
prevents  it  going  any  further. 

Nor  can  the  fact  of  the  wife's  paying  for  the  land  with  the 
•funds  of  her  husband  make  any  difference  as  to  the  legal  title. 
The  only  remedy  of  the  creditors  is  in  equity.  At  most  they 
can  hold  only  an  equitable  title.  We  have  been  referred  to 
some  cases  in  Pennsylvania,  where  ejectments  have  been  sus- 
tained for  chattels  real  bought  by  the  wife  with  the  husband's 
money;  but  these  were  under  their  local  practice — they  having 
no  Court  of  Chancery;  and  ejectment  is  there  used  in  the 
nature  of  a  bill  in  equity  to  execute  a  trust. 

But  suppose  we  are  wrong  in  this,  it  remains  to  be  consid- 
ered whether  the  case  here  shows  that  this  term  of  years  was 
in  point  of  fact  bought  with  the  husband's  money.  Upon 
the  face  of  the  deed  it  appears  to  have  been  bought  with  the 
money  of  the  wife,  and  not  of  the  husband. 

It  is  said,  in  reply,  that  at  law,  when  a  deed  is  made  to  a 
married  woman,  the  presumption,  prima  facie,  is  that  it  was 
bought  with  the  funds  of  the  husband.  This  doctrine  would 
disturb  a  great  deal  of  property  in  New  Jersey.  It  is  the 
constant  habit  to  make  deeds  and  all  kinds  of  securities  to 
married  women,  paid  for  by  funds  they  have  earned  or  re- 
ceived from  kindred,  and  which  have  remained  thus  in  their 
own  names  all  the  rest  of  their  lives.  In  all  such  cases  can 
a  creditor  sell  under  a  judgment  against  the  husband,  bring 
ejectment  against  the  wife's  heirs,  and  say  that  the  pre- 
sumption is  that  the  lands  were  bought  with  the  husband's 
money,  and  put  them  to  the  prodf,  in  the  first  instance,  tliat 
it  was  not,  or~turn  them  out  of  possession  by  ejectment  ? 

We  are  referred  to  several  cases  in  Pennsylvania  where 
the  court  use  very  strong  and  general  words  to  that  effect. 


438         NEW  JERSEY  SUPREME  COURT. 

Stall  v.  Fulton. 

Such  are  the  cases  of  KecHey  v.  Good,  9  Harm  354 ;  Brad- 
ford's appeal,  5  Gwy  513;  Gamber  v.  Gamber,  6  Harris 
366  ;  Tbpfy  v.  Topfy,  7  Gwy  328  ;  and  of  ^luWea  v.  3/«aon, 
11  Casey  261.  But  these  are  all  cases  where  the  other  facts 
in  evidence  show  very  plainly,  that  the  funds  were  in  fact 
the  husband's,  and  not  the  wife's,  and  the  expressions  of  the 
court  should  be  read  in  the  light  of  all  the  facts  appearing  in 
each  case. 

The  presumption  upon  the  face  of  the  deed  is,  that  the 
terra  of  years  was  bought  with  the  funds  of  the  wife,  and  the 
burthen  of  overcoming  this  presumption  is  upon  the  plaintiff. 

The  question  before  us  therefore  is,  whether  the  plaintiff 
has  shown,  by  his  case,  that  this  money  was  her  husband's. 
He  has  shown  us,  in  the  state  of  the  case,  the  facts  connected 
with  these  funds,  and  insists  that,  in  point  of  law,  they  were 
the  husband's.  These  facts  are,  that  the  consideration  of 
the  deed  to  the  wife  was  $150;  that  this  $150  was  the  pro- 
ceeds of  the  labor  and  industry  of  his  wife  and  minor  daugh- 
ters in  manufacturing  vests,  and  that  his  only  connection 
with  the  business  was  in  going  to  and  from  New  York, 
bringing  out  and  returning  the  work  manufactured  by  his 
wife  and  daughters.  Now  does  this  statement  show  that  the 
consideration  of  this  deed  to  the  wife  was  the  property  of 
the  husband?  It  ap|>ears  to  me,  so  far  from  doing  so,  that 
it  shows  the  reverse,  and  that  this  consideration  was  the 
property  of  the  wife,  or  of  the  wife  ami  daughters  jointly. 

The  plaintiff  contends  that  these  fact$  show  that  the  pro- 
ceeds of  this  lalx>r  of  the  wife  and  daughters  were  the  prop- 
erty of  the  husband.  This  raises  two  questions. 

JRt/vrf.  To  whom  were  the  promises  made  to  pay  for  this 
work  ?  Did  those  in  New  York,  for  whom  these  vests  were 
made,  promise  to  pay  the  husband  or  the  wife  for  it?  If 
they  promised  to  pay  the  wife,  whose  property  were  the 
earnings — the  husband's  or  the  wife's? 

It  api>ear*,  by  the  case,  that  the  labor  done  by  the  wife 
and  daughters  was  the  making  tip  of  vests  for  people  in  New 
York,  from  stuff  sent  by  them  to  the  wife  and  daughters  in 


NOVEMBER  TERM,  1863.  439 


Stall  v.  Fulton. 


Elizabeth.  The  persons  who  owned  the  stuff  must  have 
agreed  to  pay  somebody  for  the  work;  they  must  have 
agreed  to  pay  either  the  husband  or  the  wife.  In  the  absence 
of  all  proof,  the  presumption  of  law  would  probably  be  that 
they  agreed  to  pay  the  husband.  But  here  is  a  ease.  Whom 
does  the  case  show  they  must  have  agreed  to  pay  ?  The 
case  says,  that  the  work  was  done  by  the  wife  and  daughters 
for  the  persons  who  owned  the  materials  in  New  York.  It 
further  says,  that  the  husband  had  no  connection  with  the 
business,  except  in  going  to  and  from  New  York,  bringing 
out  and  returning  the  work  manufactured  by  his  wife  and 
daughters.  The  case  therefore  shows  upon  its  face  expressly, 
that  the  husband  had  nothing  to  do  with  the  agreement  to 
pay  for  the  labor,  express  or  implied;  that  no  promise  was 
made  by  those  who  got -the  work  done  to  pay  him.  This  the 
case  could  not  have  said  if  the  promise  had  been,  either  ex- 
press or  implied,  to  pay  the  husband.  His  going  to  and 
from  New  York  with  the  articles  manufactured,  no  more 
implies  a  promise  to  pay  him,  than  it  does  to  pay  the  bag- 
gage wagon  or  the  railroad  car  in  which  they  are  carried. 
The  case  therefore  negatives  any  promise,  express  or  im- 
plied, to  pay  the  husband.  We  must  necessarily  imply,  from 
the  case,  that  the  owners  of  the  raw  material  expressly  pro- 
mised to  pay  those  who  did  the  work,  viz.  the  wife  and 
daughters.  We  can  therefore  only  understand  the  case  as 
averring,  that  those  who  got  these  vests  made  undertook  ex- 
pressly to  pay  the  wife  and  daughters  for  them. 

This  brings  us  to  the  second  question,  viz.  If  the  promises 
of  the  owners  of  the  raw  material  were  to  pay  the  wife  and 
daughters  for  this  work,  whose  property  were  these  earnings 
at  the  date  of  the  deed?  Were  they  the  husband's  or  the 
wife's? 

The  plaintiff  contends  that  they  were  the  husband's  and 
refers  us  for  authority  to  the  general  principle  laid  down  in 
Clancey's  Husband  and  Wife,  p.  3,  "  that  the  husband  is  en- 
titled to  all  sums  of  money  which  the  wife  earns  by  her  skill 
and  labor  absolutely  and  in  his  own  right."  But  the  author 


440         NEW  JERSEY  SUPREME  COURT. 

Stall  v.  Fulton. 

is  here  speaking  only  of  those  earnings  which  have  been  made 
upon  express  or  implied  assurupsits  to  the  husband,  and  is 
not  speaking  of  express  assumpsits  to  the  wife.  This  author 
himself,  on  the  following  pages,  most  emphatically  negatives 
any  such  conclusion  to  be  drawn  from  his  general  language, 
and  states  clearly,  as  the  result  of  the  authorities,  that  the 
right  of  the  husband  to  the  earnings  of  the  wife,  upon  ex- 
press assumpsits  to  pay  her,  are  only  conditional,  and  that 
they  belong  to  the  wife  until  the  husband  reduces  them  into 
jK)ssession,  and  if  he  dies  first,  that  they  survive  to  the  wife. 

It  is  a  principle  of  the  common  law,  established  in  the 
earliest  time*,  and  kept  up  by  a  uniform  current  of  decisions 
to  the  present,  and  recognized  in  all  the  elementary  writers, 
that  the  right  of  the  husband  in  the  earnings  of  the  wife, 
upon  express  assumpsit  to  pay  her,  VA  only  conditional,  and 
the  right  to  such  earnings  remains  in  the  wife  until  the  hus- 
band reduces  them  actually  into  possession  ;  that  the  earnings 
of  the  wife,  after  express  promises  to  pay  her,  are  choses  in 
action — as  much  so  as  a  bond  or  note  of  hand  given  to  her 
during  her  coverture,  and  her  property  until  reduced  into  the 
possession  of  the  husband.  Why  not?  They  are  the  pro- 
ceeds of  the  sweat  of  her  own  brow,  and  hers  by  a  more 
sacred  law  than  what  descends  from  father  or  mother.  Why 
not  here?  As  each  day's  toil  is  over,  she  has  a  right  of  action 
to  enforce  its  payment  against  him  who  promises  to  pay  her, 
as  much  as  if  he  had  given  her  for  it  a  promissory  note. 

As  the  wife  did  each  job  of  work,  the  debt  due  her  from 
her  employer  was  a  chose  in  action  lx;long  to  her,  and  which 
remained  in  her  until  her  husband  saw  fit  to  reduce  it  into  his 
own  possession.  That  the  earnings  of  the  wife,  upon  express 
assumpsitrt  to  her,  belong  to  her  until  the  husband  reduces 
them  into  possession,  is  supported  by  the  most  ample  author- 
ity. Clancey'a  Husband  awl  Wife,  3,  4,  5,  and  6  ;  Bnwhford 
v.  Buckingham,  Cro.  Jac.  77 — 205 ;  Prat  d  ux.  v.  Taylor, 
CVo.  Eliz.  61;  WtUer  v.  Kaker,  2  Wilton  414;  Buckley  v. 
Collier,  1  SaUc.  114;  Fountain  and  Wife  v.  SmM,  2  SUL 


NOVEMBER  TERM,  1863.  441 


Stall  v.  Fulton. 


128;  Bac.  Ab.,  Baron  and  Feme,  E.t  §  20,  21;  Vin.  Ab., 
Baron  and  feme,  T.,  §  32. 

The  next  question  is — did  the  husband  reduce  these  choses 
in  action  of  the  wife's  into  his  possession  before  this  deed  was 
made  to  the  wife  ? 

They  existed  originally  in  the  shape  of  choses  in  action, 
that  is,  in  the  shape  of  express  promises  to  pay  the  wife  for 
her  work.  There  is  no  proof  in  the  case  that  the  husband 
ever  did,  or  intended  to  reduce  them  into  possession.  On 
the  contrary,  the  case  expressly  negatives  that  idea.  Whether 
the  husband  reduced  them  into  poasession,  was  a  fact  that 
should  have  been  directly  found  for  the  plaintiff :  it  was  a 
fact  upon  which  his  title  rested.  The  presumption  is,  that 
these  earnings  remained  in  their  original  shape  of  choses  in 
action.  The  case  says  the  lands  were  paid  for  from  the  pro- 
ceeds of  the  wife's  labor.  These  proceeds  were  promises  to 
pay  her,  and  which  we  are  to  presume,  from  the  case,  were 
turned  over  to  her  vendor  without  ever  passing  through  or 
under  the  control  of  the  husband. 

It  is  a  well  settled  principle  of  law,  that  where  the  husband 
does  not  reduce  the  choses  in  action  of  his  wife  into  his  actual 
possession,  by  collecting  or  disposing  of  them,  and  does  not 
act  with  intent  to  reduce  them  into  his  actual  possession,  their 
payment,  even  to  the  wife,  with  intent  to  reinvest  them,  will 
not  vest  the  right  to  them  in  the  husband.  Whether  they 
vest  in  the  husband  or  not  upon  payment,  even  to  the  wifer 
depends  upon  the  intent  with  which  the  payment  is  made. 
18  Ohio  115;*  3  How.  U.  S.  624  ;f  12  Smed.  &  M.  369  ;J 
3  Kelly  (G)  550  ;§  37  N.  Hamp.  146,  ||  437;  22  N.  Hamp. 
352  ;f  6  Mees.  &  Wekby  423;**  28  Vermont  765;  ft  30 
Vermont  213;  ft  32  Vermont  27.  §§ 

The  case  here  shows  no  fact  or  intent  by  the  husband  to  make 
such  a  conversion,  but  every  presumption  is  against  it.  It 

*  Dixon'a  Adm'r  v.  Dixon.  f  Price  v.  Sessions.  J  Comstock  v.  Rayford. 
\  Sayre  v.  Flournoy.  \\Hallv.Young.  ^  Coffin  v.  Morrtt.  **  Outers,  Etfr, 
v.  Madeley.  ff  Heirs  of  Holmes  v.  Adm'r  of  Holmes.  \\  Stearns  v.  Adm'r 
of  Stearns.  \\  Richardson's  Adm'r  r  Merrill. 


442         NEW  JERSEY  SUPREME  COURT. 


Stall  v.  Fulton. 


ap|>ears,  by  the  case,  that  these  earnings  remained  in  the  shape 
of  choses  in  action  of  the  wife;  of  promises  to  pay  her  until 
these  choses  were  passed  over  by  her  to  her  vendor  in  payment 
of  this  deed,  and  were,  when  so  used,  the  property  of  the  wife, 
and  not  of  the  husband.  He  had  not  yet  done  what  it  was 
necessary  for  him  to  do  lx.-fore  any  right  to  them  vested  in 
him.  He  had  not  yet  performed  the  condition  precedent 
upon  which  his  rihgt  to  these  earnings  dej>ended.  He  had 
not  reduced  them  into  his  own  possession.  This  term  of  years, 
then,  was  bought  with  her  own  property,  which  under  the 
statute  she  had  a  right  to  receive  by  grant ;  and  the  title  to 
this  term  of  years  passed  by  the  deed  to  her,  and  the  statute 
stopped  any  portion  of  the  title  from  passing  through  her  to 
her  husband. 

Nor  is  there  any  law,  human  or  Divine,  that  compels  the 
husband,  in  the  interest  of  his  creditors,  to  convert  to  their 
use  the  daily  labor  of  his  wife,  or  to  convict  him  of  fraud 
towards  them,  if  he  permits  her  to  toil  at  the  wash-tub  or  the 
sewing  machine  to  feed  her  own  children,  or  to  provide  a 
shelter  for  her  little  ones  from  the  night  and  the  tempest. 
He  may  do  so,  if  he  chooses,  but  the  law  compels  him  not. 
If  it  did — if  the  law  compelled  the  husband,  for  the  benefit 
of  creditors,  to  snatch  the  loaf  of  bread,  the  proceeds  of  her 
daily  toil,  as  she  is  carrying  it  to  her  children,  then,  indeed, 
should  mankind  blush  in  the  presence  of  the  rest  of  the  ani- 
mal creation.  The  fishhawk  does  not  rob  his  mate,  as  she 
carries  in  her  talons  to  her  nest  the  prey  she  has  plunged  be- 
neath the  ocean  wave  to  seize.  Throughout  all  the  orders  of 
animated  nature,  it  is  the  prerogative  of  the  female  to  labor 
for  her  young — the  human  male  alone  is  brute  enough  to 
plunder  her. 

Judgment  for  defendants. 

CITED  in  Peterton  and  wife  v.  Mul/ord,  7  Vroom  487,  488 ;  Quidorft  Adm'r 
v.  I'crgeaux,  3  C\  E.  Gr.  479. 


CASES  DETERMINED 

IN   THE 

SUPREME  COURT  OF  JUDICATURE 

OF    THE 

STATE  OF  NEW  JERSEY, 

AT  FEBRUARY  TERM,  1864. 


THE  STATE,  THE  JERSEY  CITY  AND  BERGEN  POINT  PLANK 
ROAD  COMPANY,  PROSECUTORS,  v.  JOHN  B.  HAIGHT,  COL- 
LECTOR. 

1.  A  plank  road   company  is  in  fact  a  turnpike  company  within  the 
meaning  of  the  tax  law  of  1854,  (Nix.  Dig.  851,  \  64,)*  requiring  "  the 
personal  estate  of  such  company  to  be  assessed  in   the  township  or 
ward  in  which  the  treasurer  or  other  officer  authorized  to  discharge 
the  general  pecuniary  obligations  of  such  company  resides." 

2.  A  plank  road  constructed  by  a  private  company  and  under  legislative 
authority,  and  dedicated  to  public  travel,  with  gates  erected  thereon 
for  the  collection  of  tolls,  as  a  condition  of  such  travel,  may  properly 
be  termed  a  turnpike  road,  without  regard   to  the  material  of  which 
the  surface  of  the  road  may  be  composed. 


On  certiorari.     In  matter  of  taxation. 

In  1862,  the  prosecutors  were  assessed  in  Jersey  City  upon 
tlie  amount  of  their  capital  stock.  After  a  reduction,  made 
by  the  commissioners  of  appeal,  the  amount  of  tax  was 
$138.74. 

The  prosecutors  seek  to  set  aside  this  assessment,  alleging 
that  the  whole  of  their  capital  stock  is  assessed  and  taxed  in 

*Eev.,p.  1153,  \  60. 

443 


444          NEW  JERSEY  SUPREME  COURT. 

State  v.  Haight. 

Jersey  City,  while  only  a  small  i>art  of  their  road,  not  ex- 
ceeding one-fourteenth  part  of  it,  is  situate  in  said  city, 
the  remainder  being  situate  in  the  town  of  Bergen,  and 
township  of  Bayonne;  that  the  company  had  no  office  or 
place  of  business  in  Jersey  City ;  that  the  tolls  were  all 
collected  at  toll  houses  outside  the  city ;  that  only  one  of 
the  directors  lived  in  the  city,  and  all  the  other  directors, 
together  with  the  treasurer,  lived  in  another  township. 
The  prosecutors  insist  that  their  road  is  to  be  taken  as  a  turn- 
pike road,  and  to  be  taxed  upon  the  same  principle,  under 
the  act  of  1854,  and  therefore  cannot  be  taxed  in  Jersey  City, 
but  must  be  taxed  in  the  township  or  ward  where  the  treasurer 
resides. 

Witnesses  were  examined  by  both  parties,  under  an  order 
of  the  court,  in  reference  to  the  facts  alleged. 

For  the  prosecutors,  A.  0.  Zttbriakie. 
For  the  defendant,  R.  D.  McClelland. 

The  opinion  of  the  court  was  delivered  by 

VAN  DYKE,  J.  The  road  in  question  is  some  eight  miles 
in  length.  Less  than  half  a  mile  of  this  is  in  Jersey  City, 
the  remainder  all  being  in  the  other  townships.  All  the  toll 
gates  and  toll  houses  of  the  company  are  in  such  other  town- 
ships, and  all  their  tolls  are  there  collected,  no  part  of  them 
being  collected  in  Jersey  City.  The  president,  who  is  one 
of  the  directors,  residi'S  in  Jersey  City.  The  other  five  di- 
rectors reside  in  Bergen.  The  treasurer  and  secretary,  being 
the  same  person,  resides  in  Bergen,  but  has  a  law  office  in 
Jersey  City,  at  which  a  considerable  portion  of  the  general 
business  of  the  company  is  transacted,  but  the  meetings 
sometimes  occur  at  other  places,  the  company  having  no 
office  or  place  of  business  of  their  own  in  that  city.  Jersey 
City,  however,  has  iiMCMcd  and  taxed  this  company  on  the 
full  amount  of  their  paid  in  capital,  on  the  ground,  as  it  is 
«up]HjHcd,  of  that  being  the  township  or  ward  where  the 


FEBRUARY  TERM,  1864.  445 

State  v.  Haight. 

company  have  their  principal  office,  or  as  the  one  where  the 
operations  of  the  company  are  carried  on.  But  the  company, 
by  their  writ  of  certiorari,  appeal  from  this  assessment,  and 
ask  to  have  it  set  aside,  on  the  ground  that  Jersey  City  has 
no  right  to  tax  them  at  all. 

The  same  section  in  the  act  of  1854,  which  directs  that  the 
personal  property  of  corporations  shall  be  assessed  where 
their  principal  office  shall  be,  or  if  they  have  none,  then 
where  the  operations  of  the  company  are  carried  on,  pro- 
ceeds further  to  enact,  that  where  the  tolls  of  any  bridge, 
turnpike,  railroad,  or  canal  company  are  collected  in  the  sev- 
eral townships  or  wards,  the  personal  estate  of  such  company 
shall  be  assessed  in  the  township  or  ward  in  which  the  treas- 
urer or  other  officer  authorized  to  discharge  the  general  pecu- 
niary obligations  of  said  company  resides. 

All  the  tolls  of  this  road,  as  we  have  seen,  are  collected  in 
other  townships  than  Jersey  City.  By  the  charter,  all  the 
toll  gates  are  to  be  elsewhere,  and  the  treasurer  of  the  com- 
pany resides  in  Bergen.  If  then,  this  road  can  be  consid- 
ered a  turnpike  road,  I  think,  under  the  provisions  of  the 
act  of  1854,  last  referred  to,  this  company  cannot  be  taxed 
in  Jersey  City,  but  must  be  taxed  in  Bergen  township,  where 
its  treasurer  resides.  It  is  a  matter  of  much  importance  to 
the  company  whether  they  are  taxed  in  the  one  place  or  the 
other. 

Is,  then,  this  road  a  turnpike  road,  and  is  this  company  in 
fact  a  turnpike  company,  within  the  meaning  of  the  act? 
The  act  only  mentions  by  name,  bridge,  turnpike,  railroad, 
and  canal  companies.  The  companies  in  the  state  usually 
known  as  plank  road  companies  are  not  mentioned  by  that 
name,  although  this  and  other  companies  of  the  kind  existed 
at  the  time  of  the  passage  of  the  law,  and  were  well  known 
as  toll  taking  companies.  It  would  seem,  therefore,  that  the 
legislature  either  intended  to  except  them  from  all  toll  re- 
ceiving companies,  or  to  class  them  under  the  denomination 
of  turnpike  company.  A  turnpike  company  is  one  that 
owns,  and  receives  tolls  on  a  turnpike  road.  Why  is  a  road 

VOL.  i.  2  E 


446          NEW  JERSEY  SUPREME  COURT. 


State  v.  Haight. 

termed  a  turnpike  road  ?  Not  because  of  its  form,  or  of  the 
material  of  which  it  i.s  composed,  but  because  of  the  form 
and  character  of  the  gates  placed  on  the  road  to  obstruct 
the  passage  of  travellers,  until  they  have  paid  the  tolls  al- 
ways collected  on  such  roads.  The  word  turnpike  does  not 
mean  road,  but  it  means  gate,  such  as  are  used  to  throw 
across  the  road,  to  obstruct  travellers'  carriages  and  the  like, 
until  the  tolls  are  collected.  This  is  the  definition  of  the 
word  given  by  Webster,  Richardson,  and  Worcester. 

The  charters  usually  granted  to  what  are  commonly  termed 
turnpike  companies,  and  those  granted  to  plank  road  compa- 
nies, with  regard  to  their  duties,  powers,  and  privileges,  are 
substantially  the  same.  Their  right  to  erect  gates  and  re- 
ceive tolls  is  precisely  the  same,  as  is  also  the  mode  of  using 
them.  The  only  perceptible  difference  between  the  two,  is 
the  material  of  which  the  surface  is  usually  composed.  But 
it  is  believed  that,  whether  the  surface  be  earth  or  stone,  or 
gravel  or  wood,  if  they  are  constructed  by  a  private  com- 
pany under  public  authority,  dedicated  to  public  travel,  with 
gates  erected  thereon  and  tolls  collected,  as  a  condition  of 
fcuch  travel,  such  companies  are  turnpike  companies,  whether 
the  surface  of  the  road  l>e  earth,  gravel,  stone,  or  wood.  The 
only  difference  between  the  road  in  question  and  what  are 
generally  known  as  turnpike  roads  l>eing,  that  it  has  wood 
for  its  surface,  instead  of  earth  or  gravel.  I  think  it  falls 
legitimately  under  the  designation  of  a  turnpike  road,  and 
the  company  owning  it  may  proj>erly  be  termed  a  turnpike 
company,  and  that  the  legislature  intended  so  to  treat  them 
in  the  act,  directing  the  manner  and  place  where  such  com- 
panies should  be  assessed. 

The  road  under  consideration,  then,  lying  in  different 
townships  or  ward*,  with  all  its  gates  erected,  and  all  its 
tolls  collected,  as  by  the  charter  they  are  required  to  I*, 
out-ide  of  Jersey  City,  and  a*  the  treasurer  and  secretary  of 
the  comjmny  reside  in  the  township  of  Bergen,  I  think  that 
is  the  place,  and  the  only  phut;  where  the  company  can  be 
leg-ally  taxed.  If  the  evidence  were  sufficient  to  justify  us 


FEBRUARY  TERM,  1864.  447 

State  v.  Haight. 

in  concluding  that  the  principal  office  of  this  company  is  in 
Jersey  City,  I  would  hold  that  to  be  the  place  where  its  per- 
sonal property  should  be  taxed :  or  if  there  were  no  provision 
in  the  statute  for  taxing  this  kind  of  corporation,  where  no 
principal  office  could  be  readily  found,  so  that  such  company 
might  avoid  taxation  altogether,  I  should  be  much  inclined  to 
hold  very  slight  evidence  of  the  existence  of  a  principal  office, 
sufficient  to  fix  the  place  of  taxation.  But  as  no  such  neces- 
sity exists  in  this  case,  and  as  the  law  has  made  provision  for 
assessing  this  class  of  corporations,  the  operations  of  which 
are  carried  on  in  different  townships  or  wards,  where  no  prin- 
cipal office  exists  in  the  township  where  the  treasurer  resides, 
I  think  we  are  bound  to  adopt  these  provisions  in  the  case 
before  us,  especially  as  I  find  no  evidence  of  the  existence  of 
aoi  office  in  Jersey  City  any  more  entitled  to  be  called  their 
principal  office,  nor  so  much  so  as  their  several  toll  houses, 
where  they  have  always  officers  stationed,  and  where  all  their 
moneys  are  collected.  I  think,  therefore,  that  this  assessment 
by  Jersey  City  should  be  set  aside. 

Assessment  set  aside. 


THE  STATE,  THE  JEKSEY  CITY  AND  BEEGEN  EAILEOAD 
COMPANY,  PEOSECUTOES,  v.  JAMES  B.  HAIGHT,  COL- 
LECTOE. 

1.  A  railroad   company,  furnishing   their   own   conveyances,  carrying 
nothing  but  passengers,  and  charging  a  certain  price  as  fare,  cannot 
be  considered  a  toll  collecting  company. 

2.  The  personal  property  of  such  company  should  be  taxed  in  the  town- 
ship or  ward  where  the  principal  business  of  such  company  is  trans- 
acted.   

On  certiorari.     In  matter  of  taxation. 

The  prosecutors,  having  been  taxed  in  Jersey  City,  in  1862, 
the  sum  of  $1246  on  their  capital  stock,  stated  in  the  assess- 
ment to  be  $150,000,  brought  this  certiorari  to  set  aside  the 
assessment  as  erroneous — first,  because  their  capital  stock  is 


448          NEW  JERSEY  SUPREME  COURT. 

State  v.  Haight. 

exempt  from  tax  by  law ;  second,  because  they  are  taxed  upon 
the  whole  amount  of  their  capital  stock  in  Jersey  City,  when 
the  whole  or  greater  part  of  their  road  is  not  situate  within 
the  said  city,  and  when  the  whole  or  greater  part  of  their 
stockholders  do  not  reside  there,  and  their  principal  place  of 
business  or  depot  is  in  the  town  of  Bergen. 

For  the  prosecutors,  A.  0.  Zabri&kie. 
For  the  defendant,  R.  D.  McClelland. 

The  opinion  of  the  court  was  delivered  by 

VAN  DYKE,  J.  The  object  of  the  certiorari  in  this  case  is 
to  set  aside  the  tax  assessed  against  the  company  by  Jersey 
City. 

I  am  not  able  to  see  any  good  reason  for  an  entire  reversal 
of  this  assessment.  The  case  does  not  come  within  the  legal 
provisions  adopted  in  the  case  of  the  Jersey  City  and  Bergen 
Point  Plankroad  Company,  decided  at  the  present  term.  It  is 
not  a  turnpike  company  in  any  sense,  nor  is  it  a  railroad  com- 
pany which  collects  its  tolls  in  different  townships  and  wards. 
It  cannot  be  fairly  said  to  collect  tolls  at  all.  Tolls  are  col- 
lected from  persons  who  pass  or  travel  by  their  own  convey- 
ances over  the  roads  or  bridges  of  another.  None  do  this  on 
the  road  of  the  prosecutors.  The  prosecutors  furnish  their  own 
conveyances,  and  carry  nothing  but  (Kissengers  or  persons,  and 
charge  them  a  certain  price  for  being  carried,  known  as  fare. 
But  if  this  company  is  to  be  considered  as  a  toll  collecting 
company,  it  has  no  treasurer,  or  other  financial  officer,  author- 
ized to  discharge  ita  general  j>ecuniary  obligations,  residing  in 
any  other  township  or  ward  in  the  state  than  Jersey  City. 

In  that  city  all  its  general  and  business  meetings  are  held. 
There  it»  president  and  secretary  reside  and  have  their 
offices,  so  far  as  they  have  any,  and  there  is  also  their  trea- 
biirer's  office,  although  the  treasurer  himself  is  not  a  resident 
of  this  state.  It  seems  to  me,  therefore,  that  Jersey  City, 
and  there  only,  is  the  proper  and  legal  place  for  the  taxation 


FEBRUARY  TERM,  1864.  449 

State  v.  Smith. 

of  its  personal  property,  which,  under  the  act  of  1862,  means 
its  capital  stock  actually  paid  in,  if  it  still  has  it,  and  its 
accumulated  surplus,  if  any  there  be. 

But  the  company  in  this  case  is  assessed  on  a  paid  in  capital 
of  $150,000,  whereas  it  appears  by  the  evidence  of  the  treas- 
urer, unquestioned  by  any  one,  that  the  whole  amount  of  the 
capital  paid  in  is  but  $63,000. 

I  think,  therefore,  that  the  assessment  should  be  affirmed, 
•except  that  the  amount  should  be  reduced  to  conform  to  the 
amount  of  capital  actually  paid  in. 

Assessment  affirmed. 


THE  STATE,  ALLEN,   PEOSECUTOR,  v.  SMITH,   COLLECTOR 
OF  THE  TOWNSHIP  OF  EARITAN. 

1.  The  mere  marking  of  a  tax  duplicate  as  an  exhibit  does  not  make  it 
competent  evidence  of  the  contents ;   there  must  be  some  extrinsic 
proof  of  its  genuineness. 

2.  A  tax  complained  of  as  illegal  will  not  be  set  aside  as  illegal,  unless 
there  is  other  proof  of  the  facts  necessary  to  show  in  what  the  illegal- 
ity consisted,  beside  the  prosecutor's  ex  parte  affidavit  upon  which  the 
eertiorari  was  allowed. 


This  was  a  certiorari  in  a  tax  case,  and  was  argued  before 
Justices  HAINES  and  ELMEK,  by  G.  A.  Allen,  for  the  prose- 
cutor, and  M.  Beasley,  for  defendant. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  The  prosecutor  of  this  certiorari  complains  that 
he  has  been  illegally  assessed,  in  addition  to  the  sums  au- 
thorized by  law,  for  his  share  of  a  sum  voted  by  special  town 
meeting,  illegally  convened,  to  be  paid  as  bounty  for  volun- 
teers, and  for  a  sum  assessed  for  losses  and  incidentals.  Had 
he  shown,  by  competent  evidence,  that  his  complaint  is  well 
founded,  he  would  be  entitled  to  relief,  it  being  very  certain 
that  the  town  meeting,  even  if  properly  convened,  had  no 
legal  authority  to  raise  money  for  either  of  those  purposes. 


450          NEW  JERSEY  SUPREME  COURT. 

State  v.  Smith. 

But  there  is  no  legal  evidence  before  us  by  which  it  appears 
that  any  such  assessment  was  made. 

The  prosecutor  was  himself  examined  as  a  witness,  and  it 
appears  he  produced  a  book,  which  purports  to  be  the  tax 
duplicate  for  the  year  1862,  which  was  marked  as  an  exhibit. 
This  book,  however,  was  not  in  any  way  authenticated  as  a 
genuine  document.  The  prosecutor  did  not  himself  under- 
take to  identify  it,  nor  was  the  assessor  or  collector  produced 
for  that  purpose;  nor  was  it  proved,  in  any  way,  how  the 
prosecutor's  tax  was  made  up. 

It  was  argued,  by  counsel,  that  the  evidence  necessary  to 
*how  that  the  prosecutor  was  in  fact  taxed  for  a  part  of  the 
bounty,  appears  in  several  ways. 

Firxt.  By  the  affidavit  of  the  prosecutor,  upon  which  the 
certioran  was  allowed.  This  was  an  ex  parte  affidavit,  and 
cannot  now  be  used  as  proof  of  anything  contained  in  it;  if 
it  could  be,  there  would  have  been  no  necessity  to  make  any 
other  proof. 

Secondly.  It  was  urged  that  the  court  allowed  a  rule  stay- 
ing the  collection  of  so  much  of  the  tax  as  was  alleged  to  be 
illegal ;  but  this  was  allowed  on  the  faith  of  the  ex  parte,  affi- 
davit, and  proves  nothing. 

Thirdly.  The  directions  of  the  court,  that  he  should  pay 
all  the  assessment  but  that  complained  of;  but  this  also  de- 
pends on  the  aforesaid  affidavit. 

Fourthly.  The  collector's  return  to  the  certiomri ;  but  this 
return  contained  nothing  but  the  tax  assessed  against  the 
prosecutor,  regular  on  its  fare,  and  not  the  whole  duplicate, 
nor  any  part  of  it,  but  that  tax  alone,  nor  was  it  proper  that 
it  should. 

The  fifth  and  main  argument  for  the  prosecutor  was,  that 
the  duplicate  produml  before  the  commissioner,  and  by  him 
marked  as  an  exhibit,  required  no  further  identification.  In. 
my  opinion,  this  argument  is  not  tenable.  All  exhibits,  ex- 
cept such  as  prove  themselves,  like  duly  certified  records  and 
acknowledged  deeds,  require  other  proof  of  their  genuineness 
before  they  can  be  received  as  competent  evidence. 


FEBRUARY  TERM,  1864.  451 


State  v.  Smith. 


In  the  case  of  The  State  v.  Cake,  4  Zub.  517,  to  which  we 
are  referred,  and  which  was  a  certiorari  in  a  road  case,  upon 
the  hearing  of  which,  copies  of  the  surveyors'  oaths,  certified 
by  the  clerk  of  the  Common  Pleas  were  produced,  which  the 
court  rejected  as  not  competent,  it  was  remarked,  that  the 
clerk  might  have  been  ruled  to  send  up  the  original  papers 
for  inspection,  or  which  is  the  better  practice,  sworn  copies 
might  have  been  produced.  But  it  is  because  neither  of  these 
things  was  done  in  this  case,  that  the  duplicate  is  not  properly 
before  us.  It  does  not  in  any  way  appear  that  the  book 
alleged  to  be  the  duplicate  came  from  the  custody  of  the  town- 
ship officers. 

It  was  argued  that  the  duplicate  is  a  public  document, 
which  proves  itself,  and  we  are  referred  to  1  Stark.  Ev.  157, 
160,  and  1  Greenl.  Ev.,  §  483,  and  the  cases  there  cited,  as  au- 
thority for  this  proposition.  An  examination  of  the  cases  and 
the  language  of  the  text  writers  will  show  that  what  is  meant 
is,  that  documents  of  a  public  nature,  such  as  parish  regis- 
ters, tax  duplicates,  &c.,  prove  themselves  good  evidence  of 
the  facts  stated  in  them.  Starkie  says,  page  182,  "the  doc- 
ument must  always  be  proved  to  be  that  which  it  purports 
to  be,  and  for  which  it  is  offered,  by  some  extrinsic  proof." 
This,  indeed,  is  so  obvious  that  no  express  authority  would 
be  necessary.  A  deed  more  than  thirty  years  old,  is  said  to 
prove  itself;  but  there  must  be  evidence  that  it  came  from 
a  proper  depository,  or  that  possession  had  been  held  under 
it,  before  it  can  be  received  as  being  in  fact  what  it  purports 
to  be. 

It  is  highly  probable  that  the  document  produced  is  in 
truth  what  it  purports  to  be,  and  the  same  may  be  said  of 
the  certified  copies  of  the  oaths  produced  in  the  case  of  The 
State  v.  Cake.  But  courts  must  adhere  to  the  well  established 
rules  of  evidence,  which  are  quite  as  applicable  in  tax  cases  as 
in  any  others.  If  it  has  been  through  inadvertence  that  the 
requisite  proof  of  the  illegality  complained  of  has  not  been 
produced  in  this  case;  the  party  to  whom  it  is  chargeable 
must  bear  the  loss. 


452          NEW  JERSEY  SUPREME  COURT. 


State  v.  Johnson. 


It  may  be  proper  to  remark,  that  the  collector  who  had  the 
custody  of  the  duplicate  was  not  bound,  and  indeed  ought  not 
to  place  it  out  of  his  custody  and  control  by  allowing  it  to  be 
made  an  exhibit  without  the  express  order  of  the  court.  The 
proper  course  was  to  make  a  copy  of  such  part  of  it  as  was 
required,  and  prove  it  to  be  correct  by  his  oath. 

The  prosecutor's  tax,  not  being  shown  to  be  illegal,  must 
be  affirmed. 

Tax  affirmed. 


THE  STATE,  WARNE,  PROSECUTOR,  v.  JOHNSON,  THE  COL- 
LECTOR OF  WASHINGTON  TOWNSHIP. 

1.  The  12th  section  of  the  tax  law  of  1862  repeals  those  parts  of  the  act 
of  1864  which  relate  to  mortgages,  so  that  all  personal  estate,  includ- 
ing all  debts  secured  by  mortgage,  is  to  be  taxed. 

2.  To  entitle  a  tax  payer  to  hare  the  debts  he  owes  deducted,  he  must 
have  an  affidavit  made  out  and  delivered  to  the  assessor  before  the 
time  limited  by  law  for  closing  the  assessment  roll.    The  assessor  is 
not  bound  to  do  it  for  him.     If  neglected,  the  commissioners  of  appeal 
may  waive  it,  and  make  the  deduction;    but  if  they  decline  to  do  so, 
the  court  will  not  set  aside  the  tax. 


This  was  a  certiornri  in  a  tax  case,  and  was  argued  before 
Justices  ELMER  and  VAN  DYKE,  by  /.  M.  Sherrerd,  for  the 
prosecutor,  and  J.  Vli«t,  for  the  township. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  That  part  of  the  tax  against  the  prosecutor, 
i-alled  in  the  duplicate  "the  war  fund,"  assessed  by  direction 
of  the  township  committee,  in  pursuance  of  a  vote  of  a  meet- 
ing of  the  inhabitants  of  the  town.ship,  not  even  professing  to 
be  convened  as  a  regular  town  meeting,  is  clearly  erroneous, 
and  mu.Ht  he  set  aside. 

As  to  the  tax  against  Warm:  as  trustee,  from  which  a  de- 
duction i.s  claimed  on  account  of  certain  debts  due  upon 
mortgage  against  the  real  estate.,  it  must  be  affirmed  as  it 
bland*.  Mr.  Warne  states,  in  his  testimony,  that  the  a*- 


FEBRUARY  TERM,  1864.  453 


State  v.  Johnson. 


sessor  asked  him  if  he  was  aware  of  the  law  being  altered, 
and  that  there  must  be  an  affidavit  made  of  the  amount  of 
debts  to  have  a  deduction,  and  .that  upon  his  asking  the  as- 
sessor to  draw  it  up  for  him,  he  said  he  had  not  time,  but 
that  at  a  future  time  he  would  do  it,  and  that  shortly  after 
IVfr.  Warne  again  saw  the  assessor,  and  he  said  he  had  not 
time  to  do  it. 

The  12th  section  of  the  act  of  1862  concerning  taxes 
enacts,  that  in  making  the  valuation  of  the  real  and  personal 
estate,  for  which  any  individual  shall  be  assessed  by  virtue  of 
this  act,  it  shall  be  lawful  for  the  assessor,  or  for  the  com- 
missioners of  appeal  in  cases  of  taxation,  to  deduct  from  such 
valuation  the  amount  of  any  debt  or  debts  bona  fide  due  and 
owing  from  such  individual  to  creditors  residing  within  this 
state,  provided  that  in  case  of  real  estate,  the  holder  of  such 
debt  shall  reside  in  the  same  county  where  such  real  estate 
lies,  and  every  assessor  shall  require  every  person  claiming  an 
exemption  from  tax  on  account  of  any  debt  or  debts  owing  by 
him,  to  make  a  true  statement,  under  oath,  of  such  debts  and 
the  amount  thereof,  and  deliver  the  same  to  the  assessor,  on  or 
before  the  time  limited  by  law  for  closing  his  assessment  roll, 
which  statement  shall  be  filed  with  the  township  clerk.  This 
section,  in  connection  with  other  parts  of  the  act  of  1862,  is 
inconsistent  with  those  parts  of  the  act  of  1854  which  relate 
to  mortgages,  and  virtually  repeals  them  ;  so  that  now  all  the 
estate  of  the  taxpayer,  including  all  debts  due  to  him,  either 
secured  by  mortgage  or  otherwise,  is  to  be  taxed,  deducting 
only  such  debts  as  he  owes  to  creditors  residing  within  this 
state ;  and  in  case  he  owes  more  than  the  value  of  his  real  es- 
tate, then  deducting  therefrom  such  debts,  not  deducted  from 
the  personalty,  as  he  owes  to  creditors  residing  in  the  same 
county  in  which  the  real  estate  lies. 

According  to  the  strict  language  of  the  aforesaid  12th  sec- 
tion, the  taxpayer's  affidavit  of  the  debts  he  claims  to  have 
deducted  must  be  delivered  to  the  assessor  before  the  time 
limited  by  law  for  closing  his  assessment  roll,  in  this  case  the 
50th  day  of  August. 


454          NEW  JERSEY  SUPREME  COURT. 


Perrine  v.  Serrell. 


The  .assessor  is  not  bound  to  draw  it  for  him,  unless  he  has 
the  leisure,  and  chooses  to  do  so.  Mr.  Warne  never  presented 
an  affidavit,  but  relied  on  the  assessor  drawing  it  for  him. 

But  inasmuch  as  the  commissioners  of  appeal  have  the 
power  to  make  deductions,  it  is  insisted  that  the  affidavit 
might  be  presented  to  them,  and  that  the  prosecutor  was  pYe- 
vented  from  doing  this  by  the  commissioners  having  neglected 
to  meet.  There  is,  however,  no  proper  evidence  that  they  did 
not  meet.  The  act  fixes  no  time  in  the  day  for  the  meeting, 
and  although  Mr.  Warne  testifies  he  attended  at  the  proper 
time  and  place,  and  did  not  find  them,  it  appears  that  he 
stayed,  at  the  latest,  only  until  one  o'clock,  and  there  is  no 
negative  evidence  that  they  did  not  convene  during  the  busi- 
ness hours  of  the  day.  In  the  absence  of  such  evidence,  we 
must  presume  they  did  meet.  And  if  it  had  l>een  shown 
that  in  fart,  there  was  no  meeting  of  the  commissioners  on  the 
day  fixed  by  law,  this  fact  would  not,  in  my  opinion,  entitle 
him  to  relief  from  the  court.  As  he  did  not  absolutely  re- 
fuse to  be  sworn,  so  as  to  debar  a  right  of  ap[>eal,  I  think  the 
commissioners,  if  satisfied  that  he  had  been  prevented  from 
making  the  affidavit  by  a  misunderstanding,  might  have  re- 
ceived his  affidavit,  and  granted  him  relief,  yet  they  were  not 
strictly  bound  to  do  so;  and  if  by  his  negligence  he,  or  the 
person  he  represents,  has  suffered  loss,  this  court  is  not  called 
on  to  aid  him. 

CITED  in  State,  Vaifs  Elr*,  pros.,  v.  Runyon,  12  Vroom  103. 


JOHN  D.  PEKHINK  v.  JAMES  E.  SERRELL. 

1.  Under  a  warranty  thnl  a  horee  U  sound  and  kind,  and  that  if  he 
•hould  not  Miit.  the  -.-||.T  would  take  him  back,  and  send  the  pur- 
di:i--r  another,  htld  that  the  warranty  an  to  unsoundncM  was  inde- 
pendent, nnd  that  the  riflht  to  provide  another  home  under  the  con- 
trart  did  not  extend  to  iin-onmlm— > :  that  the  horee  bcin^  unsound, 
and  having  died,  tin-  pnrchoHer  could  recover  damage*,  and  was  not 
obliged  to  call  IIJKMI  the  Heller  to  furni-h  another  honte. 


FEBRUARY  TERM,  1864.  455 

Perrine  v.  Serrell. 

2.  The  measure  of  damages  in  such  case  is  the  difference  between  the 
horse,  if  sound,  as  he  actually  was.     Expenses  paid  by  the  plaintiff  in 
delivering  the  horse  in  New  York  to  be  allowed. 

3.  When  the  seller  contracts  to  send  a  horse  to  the  purchaser  in  New 
York,  to  be  paid  for  when  received  in  the  city,  the  risk  of  the  horse 
is  upon  the  seller  until  the  horse  is  delivered  in  New  York. 

4.  When  an  exception  is  general  as  to  the  law  upon  a  particular  part  of 
the  judge's  charge,  and  the  assignment  is  also  general,  all  the  testi- 
mony necessary  to  support  the  legal  proposition  will  be  presumed  to 
have  been  before  the  jury. 

The  case  came  up  on  a  writ  of  error  to  the  Monmouth 
Circuit  Court. 

The  reason  assigned  for  reversal  of  the  judgment,  and  the 
facts  relied  on  in  support  of  them,  are  set  forth  in  the  opinion 
of  the  court. 

For  the  plaintiff,  J.  D.  Bedle  and  M.  Beasley. 
For  the  defendant,  A.  C.  McLean. 

OGDEN,  J.  The  action  below  was  for  the  recovery  of 
damages  for  a  breach  of  warranty  contained  in  a  contract  for 
the  sale  of  a  horse. 

A  verdict  was  rendered  in  favor  of  the  plaintiff  below,  and 
judgment  entered  thereon. 

The  first  error  assigned  is,  that  the  court  refused  to  non- 
suit the  plaintiff  below  because,  as  alleged  by  the  plaintiff  in 
error,  the  sale  was  not  absolute  touching  the  warranty,  but 
that  Perrine  had  a  right  to  furnish  another  horse  in  place  of 
the  one  which  was  the  subject  of  the  sale.  The  whole  con- 
tract was  made  in  writing,  by  letters  passing  between  them, 
the  seller  living  in  Freehold,  the  buyer  living  in  New  York. 
The  plaintiff,  after  looking  at  the  animal,  called  "  the  Bashaw 
colt,"  in  Freehold,  returned  to  the  city,  and  on  the  21st  of 
January,  1861,  wrote  to  Perrine  as  follows: 

"The  end  of  this  week,  or  the  beginning  of  next,  if  you 
will  please  write  me  word  what  day  you  will  send  the  Bashaw 


456          NEW  JERSEY  SUPREME  COURT. 

Perrine  v.  Serrell. 

colt  (price  as  spoken  $200,  and  warrant  it  sound  in  all  re- 
spects) up  by  the  boat,  I  will  be  there  with  my  horse  which 
caii  return  by  the  boat  on  the  same  day.  I  will  also  send 
you  one  hundred  dollars  on  account,  and  you  to  allow  me 
what  is  just  for  ray  horse;  and  if  on  trial  the  horse  suits,  I 
will  pay  the  balance,  or  if  not  you  are  to  get  me  such  horse 
as  will  suit." 

On  the  23d  of  January,  the  defendant  replied  by  letter,  as 
follows : 

"I  received  yours  of  the  21st,  stating  you  would  like  me 
to  send  you  the  Bashaw  colt.  I  will  do  so,  and  warrant  him 
sound  and  kind.  If  he  does  not  suit  you,  I  will  take  him 
back  and  send  you  one  that  will.  I  will  send  him  up  on 
Saturday  morning.  Please  have  your  horse  to  send  back  by 
my  man.  The  price  of  this  colt  is  §200.  Send  your  check 
for  §100, — your  horse  I  will  allow  you  all  he  is  worth. 
When  I  see  you  all  things  I  think  will  be  satisfactory.  I 
make  it  my  business  to  make  it  so." 

"P.  S.  The  horse  will  come  up  with  '  the  Keyport'  from 
Keyport,  N.  J." 

On  the  26th  January,  Perrine  sent  the  horse  to  New  York 
in  charge  of  one  Shepherd,  his  employee,  together  with  the 
following  letter: 

"  We  send  to-day  the  black  colt  as  agreed  to— you  will 
please  enclose  the  money  or  check  in  an  envelope,  and  remit 
it  by  the  bearer,  Edward  Shepherd,  and  much  oblige 

Yours  resp'ty,  JOHN  D.  PEKRINE,  by 

D.  M.  Reed."" 

The  horse  was  received  by  the  plaintiff  in  New  York,  and 
he  sent  Ills  own  horse  to  the  defendant  by  Shepherd,  with  the 
following  letter : 

"Jan'y  26,  1851. 

Herewith  I  send  you  a  certified  check  for  $100,  payable 
to  your  order,  which  can  be  drawn  in  any  of  your  banks,  on 
account  of  Bashaw  colt,  as  ngrwjd  by  letters  which  have 
JM---.I  I),  t  \VL---n  us"  Then  adding  some  characteristics  of  his 
own  horse*. 


FEBRUARY  TERM,  1864.  457 

Perrine  v.  Serrell. 

Perrine  received  the  horse  and  check  through  his  agent, 
Shepherd.  It  did  not  appear  that  any  valuation  was  fixed 
by  either  party,  then  or  at  any  other  time,  upon  the  plaintiff's 
horse,  nor  was  there  any  testimony  of  his  value  offered  at  the 
trial.  On  the  afternoon  of  the  day  on  which  the  colt  was  sent 
to  the  city,  he  coughed  considerably.  He  was  well  taken 
care  of  and  nursed.  He  grew  worse  from  day  to  day,  and  in 
a  month  afterwards  died  from  inflammation  of  the  trachea 
and  lungs. 

It  was  contended  by  Perrine  in  support  of  the  first  error 
assigned,  that  by  the  terms  of  the  contract,  the  right  to  pro- 
vide another  horse  extended  to  uasoundness ;  that  it  was  a 
part  of  the  warranty, 'and  that  the  plaintiff  could  not  recover 
damages  until  he  proved  that  he  had  called  upon  Perrine  to 
furnish  another  horse,  and  that  Perrine  had  refused  to  do  so. 

This  is  not  the  true  construction  of  the  contract.  The 
warranty,  as  to  soundness,  was  complete  and  independent  of 
the  undertaking,  that  if  the  horse  did  not  suit  he  might  be 
returned,  and  another  which  would  suit  might  be  furnished 
in  his  place.  The  defendant  below  could  not  have  war- 
ranted that  the  horse  would  suit.  This  was  not  a  subject 
matter  of  warranty,  because  it  might  depend  upon  the  taste 
of  the  plaintiff,  as  to  gait,  style,  speed,  &c.  It  did  not  refer 
to  unexisting  quality  or  condition  of  the  animal.  The  plain- 
tiff below  could  not  have  fulfilled  the  terms  upon  which  he 
was  entitled  to  call  for  another  horse,  because  the  colt  died 
upon  his  hands  from  a  disease,  which  the  jury  found  existed 
when  the  contract  of  sale  and  purchase  was  made.  If  the 
horse  had  been  sound,  from  aught  that  appears  in  this  case, 
he  might  have  suited  the  plaintiff  in  all  respects  contem- 
plated in  the  condition. 

Again,  the  plaintiff  might  immediately  on  delivery  have 
resold  the  horse  in  good  faith  before  the  malady  of  which  lie 
died  had  developed  itself,  with  his  warranty  of  soundness, 
and  have  thus  deprived  himself  of  the  ability  to  make  re- 
turn; but  in  such  case,  if  he  became  liable  for  damages  on 
his  warranty,  could  it  have  been  said  that  he  could  not  have 


458          NEW  JERSEY  SUPREME  COURT. 

Perrine  v.  Serrell. 

fallen  hack  upon  the  defendant  because  he  did  not  first  offer 
to  return  the  horse?  There  is  nothing  in  the  terms  of  the 
contract  which  prevented  the  plaintiff  from  treating  the 
warranty  as  extending  only  to  soundness  and  kindness. 

Another  error  assigned  is,  that  the  court  erred  in  instruct- 
ing the  jury  that  the  risk  of  the  horse  was  upon  Perrine 
until  he  was  delivered  in  New  York. 

I  think  that  the  letters  sustain  the  court  in  that  position. 
The  plaintiff  was  not  to  pity  until  the  colt  was  received  in  the 
city.  If  a  creditor  of  the  plaintiff  had  attached  the  animal 
within  the  jurisdiction  of  this  state,  could  the  process  have 
held  him  against  the  defendant  as  the  owner?  Or  if  the 
defendant  had  gone  with  the  horse  to  New  York,  and  sold 
him  to  a  third  party  there,  could  the  plaintiff  have  maintained 
trover  for  him  against  the  purchaser? 

The  trial  by  Serrell,  which  was  to  precede  the  purchase, 
was  to  be  made  in  New  York,  and  within  a  reasonable  time; 
hence  the  title  and  ownership  must  have  continued  in  the 
defendant  until  a  fair  opportunity  was  offered  for  making  the 
trial.  It  appears,  in  the  case,  that  the  plaintiff,  after  re- 
ceiving the  horse,  drove  him  several  times  without  com- 
plaining of  his  qualities;  and  from  the  evidence,  it  is  fair  to 
assume  that  he  would  have  been  satisfied,  if  a  serious  un- 
Houndness  had  not  have  been  discovered.  It  is  not  the  case 
of  an  absolute  sale  made  at  Keyport,  with  possession  remain- 
ing in  the  seller  merely  as  a  lien,  or  to  secure  the  payment  of 
the  purchase  money. 

Another  error  assigned  is,  that  the  judge  instructed  the 
jury,  that  their  verdict  could  in  no  way  depend  upon  the 
value  of  the  plaintiff's  horse. 

How  could  the  value  of  that  horse  enter  into  the  question 
of  damages?  Serrell  was  to  give  $200  for  the  colt.  He 
jwiid  $100  in  cash,  in  New  York,  and  at  the  same  time  passed 
his  own  horse  over  to  Perrine,  at  what  he  might  be  worth, 
on  account  of  the  balance.  The  defendant  never  informed 
the  plaintiff  of  his  estimate  of  the  value  of  the  horse  sent  to 
lii in.  If  he  would  not  at  the  time  fetch  enough  to  make  up 


FEBRUARY  TERM,  1864.  459 


Perrine  v.  Serrell. 


the  full  price  of  $200,  Perrine  had  his  action  against  Serrell 
for  the  balance.  There  was  no  error  in  this  instruction  of  the 
court. 

The  defendant  also  excepted  to  the  following  part  of  the 
charge :  "  The  measure  of  damages  of  the  plaintiff,  is  the  dif- 
ference between  the  horse,  if  sound  and  as  he  was;  and  you 
shall  also  allow  the  plaintiff  the  expenses  of  doctoring  the 
horse." 

The  rule,  as  to  the  measure  of  damages,  was  correctly  stated, 
and  has  been  well  established.  What  other  sensible  rule  could 
be  adopted  for  the  guidance  of  a  jury? 

Although  the  price  was  $200,  yet  if  it  satisfactorily  ap- 
peared by  the  proofs,  that  had  he  have  been  sound  he  would 
have  been  worth  $300,  upon  what,  principle  should  the  plain- 
tiff be  deprived  of  the  benefit  of  the  increased  value  ? 

The  last  error  relates  to  the  charge  respecting  the  expenses 
incurred  by  the  plaintiff  in  doctoring  the  horse  in  New  York. 

The  judge  told  the  jury  that  such  expenses  should  be  al- 
lowed. The  proof  is,  that  Serrell  paid  twenty  dollars  to  a 
veterinarian.  It  was  not  contended  that  the  charge  was  un- 
reasonable ;  why  should  it  not  have  been  allowed  ?  It  was  a 
liability  incurred  by  Serrell  on  account  of  the  false  warranty, 
and  done  for  the  benefit  of  the  defendant.  Serrell  was  bound 
to  have  the  animal  properly  cared  for,  at  the  cost  of  the  war- 
rantor, until  he  should  come  and  t  take  him  under  his  own 
charge. 

The  exception  was  general  upon  the  law  of  that  part  of  the 
charge,  and  the  assignment  of  error  is  also  general. 

In  such  a  case  all  the  testimony  necessary  to  support  the 
legal  proposition  enunciated,  is  presumed  to  have  been  before 
the  jury.  If  the  defendant  intended  to  object  to  the  charge 
because  the  evidence  of  notice  was  not  sufficient,  he  should 
have  stated  his  point  distinctly  to  the  judge,  and  have  called 
upon  him  so  to  instruct  the  jury.  The  attention  of  the  judge 
would  then  liave  been  directed  to  the  point ;  and  if  the  case 
had  required  it,  he  might  have  qualified  the  charge  in  that 
particular.  As  the  bill  stands,  we  must  take  the  exceptions 


460          NEW  JERSEY  SUPREME  COURT. 


Aycrigg's  Ex'rs  v.  New  York  and  Erie  Railroad. 


to  have  been  to  the  right  of  the  plaintiff  to  such  an  allowance 
by  a  jury  under  any  circumstances. 

It  is  necessary  for  the  protection  of  a  judge,  in  the  haste  of 
a  trial  at  circuit,  that  a  general  exception  of  this  character 
should  be  taken  most  strongly  against  the  plaintiff  in  error, 
that  all  necessary  presumptions  and  intendments  should  be 
made  in  support  of  a  judgment  In  3  Green  276,*  the  court 
said  :  "  If  a  party  wishes  to  have  the  opinion  of  the  court 
upon  the  legality  of  a  charge,  he  should  put  his  finger  on  the 
matter  objected  to,  and  state  the  reasons." 

It  does  not  appear  that  the  attention  of  the  judge  was  called 
to  the  reason,  urged  in  the  argument  before  this  court,  why  his 
charge  is  alleged  to  be  erroneous ;  so  that  if  in  error,  he  might 
have  corrected  it,  and  have  obviated  the  objection. 

A  party  should  not  be  permitted  to  surprise  his  adversary, 
nor  be  allowed  here,  for  the  first  time,  to  raise  a  point  which 
might  have  been  corrected  if  distinctly  made  in  the  court 
below.  As  said  by  the  Court  of  Errors  and  Appeals,  in  the 
case  of  Olive)-  v.  Phelpgrf  "  without  such  restraint,  bills  of  ex- 
ceptions would  be  but  traps  to  surprise  and  mislead  an  adver- 
sary, and  not  a  means  for  the  attainment  of  justice." 

The  judgment  below  should  be  affirmed. 

Judgment  affirmed. 

VBEDENBUROH,  J.,  concurred. 

CITED  in  D,  L.  &  W.  R.  R.  Co.  v.  Dailcy,  8  Froom  528. 


AYCBIGG'S  EXECUTORS  v.  THE  NEW  YORK  AND  ERIE 
RAILROAD  COMPANY. 

L  A  master  is  liable  to  answer  in  a  civil  suit  for  the  tortious  acts  of  his 
•errant,  if  the  act  be  duuc  in  the  course  of  his  employment  in  his 
master's  service,  or  within  the  ftcope  of  his  authority;  whether  so 
done  or  not,  must  depend  u|x>n  the  facts  of  each  particular  case. 

2.  What  acU  of  the  captain  of  n  ferry  boat  may  be  considered  as  not 
being  in  the  course  of  his  employment. 

3.  The  rule  which  should  govern  the  court  on  a  motion  to  nonsuit,  dis- 
ci isaed. 

*  Ludlam  r.  BrodcricJc.     f  Spencer  180. 


FEBRUARY  TERM,  1864.  461 

Aycrigg's  Ex'rs  v.  New  York  and  Erie  Railroad. 

On  rule  to  show  cause  why  a  nonsuit  should  not  be  set 
aside. 

For  the  plaintiff,  A.  8.  Pennington. 
For  the  defendant,  J.  W.  Scudder. 

HAINES,  J.  This  action  was  brought  to  recover  the  dam- 
ages alleged  to  have  been  sustained  from  the  burning  of  the 
yacht  Astrea,  of  the  plaintiffs,  by  the  negligence  and  miscon- 
duct of  the  defendants,  on  the  first  day  of  August,  1862. 

The  motion  now  is  to  set  aside  a  nonsuit  granted  at  the 
Hudson  Circuit.  This  leads  to  the  consideration  of  the  rule 
which  should  govern  a  court  on  a  motion  to  nonsuit.  In  the 
case  of  The  Central  Railroad  Company  against  Moore,  4 
Zab.  830,  the  Court  of  Errors  and  Appeals  decided  the  rule 
in  terms  quite  explicit,  and  that  rule  must  govern  this  case. 
It  was  there  said,  that  the  province  of  the  court  and  that  of 
the  jury  are  quite  different  and  distinct:  of  the  one  to  de- 
clare the  law,  and  the  other  to  settle  the  facts.  If  the  facts, 
clearly  settled  or  uncontroverted,  present  a  case  in  which  the 
plaintiff  is  not  entitled  to  recover,  it  is  the  duty  of  the  court 
to  nonsuit;  or  if  the  case  made  be  such  that  the  court  would 
set  aside  a  verdict  against  the  defendant,  as  contrary  to  evi- 
dence, the  plaintiff  should  be  called.  In  so  doing,  the  court 
acts  strictly  within  its  province,  and  declares  the  law  arising 
from  the  clearly  settled  and  uncontroverted  facts.  But  if 
the  facts  be  controverted,  or  not  manifest,  it  is  the  duty  of 
the  judge  to  submit  them  to  the  jury,  under  proper  instruc- 
tions, thus  leaving  to  that  branch  of  the  court  the  exercise 
of  its  peculiar  functions,  and  affording  to  the  parties  the  right 
of  trial  by  jury,  which  the  constitution  has  declared  shall  re- 
main inviolate. 

Then  the  question  arises,  whether  the  facts  in  this  case 
were  clearly ^ settled  and  uncontroverted.  Does  the  testi- 
mony show  beyond  question  that,  at  the  time  of  the  injury 
complained  of,  the  person  in  command  of  the  steamer  of 
the  defendants  was  not  acting  within  the  scope  of  his  ati- 

VOL.  i.  2  F 


462          NEW  JERSEY  SUPREME  C'OURT. 

Aycrigg*8  Ex'rs  v.  N^w  York  and  Erie  Railroad. 

thority  ?  not  iu  the  course  of  the  business  of  his  employ- 
ment ?  Whether  he  was  or  not  is  the  question  to  be  deter- 
mined. 

By  the  testimony,  it  appears  that  the  Astrea  was  anchored 
on  the  flats  near  Jersey  City.  The  barge  Poughkeepsie, 
lying  at  the  wharf  of  the  defendants,  on  the  Jersey  side  of 
the  river,  took  fire.  She  went  out  of  the  dock,  but  how  or 
by  what  means  does  not  appear.  Being  out,  she  was  carried 
by  the  wind  and  tide  beyond  the  Astrea.  Then  the  steamer 
Hudson,  a  ferry  boat  employed  by  the  defendants  to  carry 
passengers  and  freight  between  their  wharves  on  each  side 
of  the  river,  went  down  the  river  out  of  her  usual  course, 
and  fastened  to  the  barge,  and  towed  her  up  the  stream  to 
within  about  a  hundred  feet  of  the  Astrea.  At  the  same 
time  with  the  cry  of  some  persons  on  the  wharf  and  else- 
where, the  hawser  connecting  the  steamer  to  the  barge  was 
cut  or  parted,  and  the  barge  being  again  loose  floated  against 
the  yacht,  set  fire  to  and  greatly  damaged  her.  The  judge 
holding  that  there  was  not  sufficient  evidence  to  charge  the 
defendants  with  the  negligence  of  their  agents,  granted  the 
motion  to  nonsuit.  The  simple  question  now  to  be  answered 
is,  was  that  ruling  correct? 

There  is,  perhaps,  no  rule  of  law  more  firmly  settled  than 
that  a  master  is  ordinarily  liable  to  answer,  in  a  civil  suit, 
for  tortious  act  of  his  servant,  if  the  act  be  done  in  the 
course  of  his  employment  in  his  master's  service.  This  is 
on  the  principle  of  the  maxim  responded/  superior,  and  also 
of  the  maxim  "  qui  facit  per  (ilium  f<icit  per  se."  The  master 
in  liable,  although  he  did  not  authorize  or  even  know  of  the 
servant's  act  or  negligence,  and  although  he  disapproved  of 
or  forbade  it,  if  the  act  was  (lone  in  the  course  of  the  servant's 
employment,  or,  as  it  is  sometimes  expressed,  within  the  scope 
of  his  authority. 

The  term  "  within  the  regular  department  of  the  servant," 
ai  used  by  Littledalo,  J.,  in  Rimdl  v.  S'impayo,  1  Oir.  &  P. 
255,  is  applicable  rather  to  matters  of  contract  than  of  torts, 
as  where  a  servant,  acting  in  his  particular  department  of 


FEBRUARY  TERM,  1864.  463 

Aycrigg's  Ex'rs  v.  New  York  and  Erie  Railroad. 

business,  contracted  a  debt  for  which  the  master  was  held 
liable.  In  that  case  a  coachman  who  had  agreed,  for  a  proper 
consideration,  to  find  horses,  hired  a  pair  of  horses  for  his 
employer's  use;  and  it  was  held  that  the  owner  of  the  horses 
having  no  notice  of  the  private  contract  between  the  coachman 
and  the  master,  could  hold  the  master  liable  for  the  hire 
of  the  horses.  The  servant  appearing  in  the  master's  livery, 
and  hiring  the  horses  for  his  master's  use,  "was  acting  within 
his  regular  department  of  business." 

Whether  the  servant  was  acting  within  the  scope  of  his 
employment  and  in  pursuance  of  his  master's  orders — 
whether  in  the  course  of  his  employments,  or  on  his  own  re- 
sponsibility, in  the  pursuit  of  his  own  business  or  pleasure, 
must  depend  upon  the  facts  of  each  case.  It  is  difficult  to 
fix  any  general  rule  to  govern  every  particular  case.  The 
numerous  authorities  on  the  subject  are  quite  uniform  on  the 
principle  of  law  involved,  yet  vary  in  its  application  accord- 
ing to  the  various  circumstances  under  which  the  supposed 
injury  arose. 

It  was  held,  for  example,  in  Middleton  v.  Fowler,  1  Salk. 
282,  and  in  many  subsequent  cases,  that  a  master  is  not  re- 
sponsible for  the  wrongful  act  of  his  servant,  unless  done  in 
the  execution  of  the  authority  from  his  master.  And  in  an- 
other case  it  is  said,  that  beyond  the  scope  of  his  employment, 
he  is  as  much  a  stranger  to  his  master  as  to  a  third  person. 
Russell  v.  Early,  13  Alabama  R.  131.  In  Joel  v.  Morrison, 
6  Car.  &  Pay.  501,  it  was  ruled  that  a  master  was  liable  for 
damages  caused  by  the  negligent  driving  of  his  cart  in  the 
city  by  his  servant,  although  it  was  proved  that,  in  carrying 
out  his  orders,  the  cart  ought  not  to  have  been  in  the  city  at 
all;  and  Parke,  B.,  said  :  "If  the  servant,  being  on  his  mas- 
ter's business,  make  a  detour  to  call  upon  a  friend,  the  master 
will  be  liable."  Again,  in  Sleath  v.  Wilson,  9  Car.  &  Pay. 
607,  the  master  was  held  responsible  for  damages  caused  by 
the  negligent  driving  of  his  servant,  who,  after  setting  his 
master  down,  drove  round  to  deliver  a  parcel  of  his  own,  and 
did  not  drive  directly  where  he  was  ordered  to  go ;  and  Ers- 


464          NEW  JERSEY  SUPREME  COURT. 


Aycrigg's  Ej^re  v.  Xe  3  York  and  Erie  Railroad. 

kine,  J.,  declared,  that  whenever  the  master  has  intrusted  his 
servant  with  the  control  of  the  carriage,  it  is  no  answer  that 
the  servant  acted  impro|>erly  in  the  management  of  it. 

In  this  case  it  is  manifest  that  the  captain  was  in  charge 
of  the  steamer,  with  the  control  of  it  when  in  motion  and 
crossing  the  river,  with  the  general  direction  to  ply  between 
the  wharves  of  the  defendants.  But  the  time  of  starting  on 
each  trip,  of  putting  the  boat  in  motion,  was  under  the  direc- 
tion of  an  agent  of  the  defendants.  And  the  steamer  was  to- 
leave  the  dock  only  on  his  signal.  He  testifies  that  he  gave 
no  instruction  for  the  Hudson  to  go  after  the  barge,  nor  to 
have  it  cut  off.  It  does  not  appear  that  the  Hudson  was  on 
her  trip  across  the  river,  and  made  a  detour  in  pursuit  of  the 
barge,  nor  that  any  signal  for  starting  had  been  given.  If 
no  such  order  was  given,  the  steamer  was  not  then  under  the 
control  of  the  captain  by  authority  of  the  company.  It  was 
no  more  so  than  a  coach  and  horses  are  under  the  control  of 
the  driver  while  in  the  stable  or  standing  at  the  door  await- 
ing orders.  For  aught  that  appears,  the  captain  may,  of  his 
own  will,  and  for  his  own  purj>ose  of  benevolence  or  profit, 
have  moved  out  of  the  slip  and  gone  in  pursuit  of  the  barge. 
If  so,  upon  the  principles  above  stated,  he  was  not  on  the 
business  of  his  employers,  but  was  as  much  a  stranger  to  the 
company  as  to  any  third  person. 

It  may  well  be  questioned  whether,  if  the  commander  of 
the  steamer  was  acting  in  the  course  of  his  employment  and 
under  the  implied  command  of  the  company,  the  defendants 
are  liable.  The  burning  barge  was  moving  under  the  forces 
of  the  wind  and  tide  towards  the  wharves  and  shipping  be- 
low, threatening  destruction  to  a  large  amount  of  pro|>erty. 
The  steamer,  to  prevent  so  great  a  calamity,  seized  the  barge 
and  towed  her  up  the  stream.  When  it  was  no  longer  safe 
to  continue  the  connection,  the  hawser  was  severed,  and  the 
l*arge  left  to  float.  On  the  principle  of  inevitable  necessity, 
the  owners  of  the  steamer  would  ]>erhaps  be  exculjjated  from 
responsibility,  in  the  absence  of  proof  either  of  carelessness 
or  willfulness  on  the  part  of  the  commander.  I  can  see  no 


FEBRUARY  TERM,  1864.  465 


Nevius  v.  Martin. 


evidence  sufficient  to  justify  a  recovery.  Had  it  been  left  to 
the  jury,  and  a  verdict  found  for  the  plaintiffs,  we  would  have 
been  obliged  to  set  it  aside  as  a  verdict  without  sufficient  evi- 
dence. I  think  the  rule  to  show  cause  should  be  vacated. 

Rule  to  show  cause  discharged. 

OGDEN  and  VREDENBURGH,  Justices,  concurred. 

•  CITED  in  New  Jersey  Express  Co.  v.  Nichols,  4  Vroom  439. 


PETEE  NEVIUS  v.  JULIANNA  MARTIN  ET  AL. 

1.  A  devise  of  "  one  acre  of  land  joining  the  road  leading  from  Metuchen 
to  Bonhamptown  on  the  west,  and  my  house  loton  the  east" — held,  that 
the  house  lot  was  only  descriptive  of  one  of  the  boundaries  of  the  one 
acre  lot,  and  that  the  house  lot  did  not  pass  by  sucli  devise. 

2.  If  there  be  no  latent  ambiguity,  the  construction  of  a  will  must  be 
drawn  from  the  words,  and  parol  testimony  cannot  be  admitted  to 
supply,  contradict,  enlarge,  or  vary  the  words,  or  to  explain  the  inten- 
tion of  the  testator. 


In  ejectment.  Error  to  the  Circuit  Court  of  the  county  of 
Middlesex. 

David  P.  Martin,  in  and  by  his  last  will  and  testament, 
xlevised  (among  other  things)  as  follows :  "  Item.  After  the 
death  of  my  said  wife,  I  give  and  bequeath  to  my  nephew, 
Peter  Nevius,  one  acre  of  land  joining  the  road  leading  from 
Metuchen  to  Bonhamptown  on  the  west,  and  my  house  lot  on 
the  east.  But  if  said  Peter  Nevius  should  die  before  the 
age  of  twenty-one  years,  I  give  said  lot  to  his  brother,  John 
Nevius." 

The  wife  of  the  testator  having  died,  and  Peter  Nevius 
having  attained  the  age  of  twenty-one  years,  brought  this 
action  to  recover  the  lot,  called  in  the  above  devise  the  house 
lot,  containing  about  14J  acres,  claiming  to  be  entitled  to  it 
as  devisee,  under  a  proper  and  just  construction  of  said  de- 
vise. Upon  the  trial,  after  reading  the  will  in  evidence,  he 
offered  to  prove,  by  the  scrivener  who  drew  the  will,  that  by 


466          NEW  JERSEY  SUPREME  COURT. 

Nevii'f  v.  Martin. 

the  instruction  given  to  him  by  the  testator  at  the  time  of 
writing  the  will,  he  was  directed  to  devise  the  lot  in  question, 
containing  about  fourteen  acres,  to  the  plaintiff  in  fee — and 
that,  by  the  language  of  the  will,  he  believed  that  such  intent 
was  expressed. 

This  evidence  was  objected  to  and  overruled.  And  the 
court,  being  of  opinion  that  the  plaintiff  had  made  no  title 
to  the  premises  under  the  will,  directed  him  to  be  called. 
To  these  several  rulings  of  the  court  the  plaintiff  excepted, 
and  a  bill  of  exceptions  was  sealed.  The  case  now  comes  up 
upon  a  writ  of  error,  and  the  question  presented  is,  whether, 
in  the  judgment  and  proceedings  of  the  court  below,  there  is 
error. 

For  the  plaintiff,  W.  H.  Leupp. 
For  the  defendant,  H.  V.  Speer. 

HAINES,  J.  The  plaintiff,  claiming  to  be  the  devisee  of 
two  lots  of  land,  one  containing  one  acre,  and  the  other  about 
fourteen  acres,  in  the  county  of  Middlesex,  under  the  will  of 
David  P.  Martin,  deceased,  brought  his  action  of  ejectment, 
for  the  recovery  of  the  fourteen  acre  lot,  in  the  Circuit  Court 
of  that  county. 

The  language  of  the  clause  of  the  will  under  which  he  claims 
is  as  follows :  "Item.  I  give  and  l>equeath  to  my  nephew,  Peter 
Nevius,  one  acre  of  land,  joining  the  road  leading  from  Metn- 
chen  to  Bonharnptmvn,  on  the  west;  and  my  house  lot  on  the 
east;  but  if  the  said  Peter  Nevius  should  die  before  the  age 
of  twenty-one,  I  give  the  said  lot  to  his  brother,  John  Nevius." 

It  is  admitted  that  the  testator,  at  the  date  of  the  will, 
owned  a  lot  of  about  one  acre,  which  he  purchased  of  Jona- 
than Acken  and  wife,  adjoining  the  road  leading  from  Me- 
tuchen  to  Ronhamptowii  on  the  west,  and,  also,  his  house  lot 
on  the  east;  that  when  conveyed  to  the  testator,  it  was 
aejwirated  by  fence  from  the  house  lot;  but  after  the  pur- 
chase, the  fence  was  suffered  to  go  down,  and  at  the  death  of 


FEBRUARY  TERM,  1864.  467 

Nevius  v.  Martin. 

the  testator,  and  for  some  time  before,  there  was  no  fence 
between  the  one  acre  lot  and  the  house  lot;  that  (he  house 
lot  was  that  on  which  the  testator  lived,  lying  east  of  the 
one  acre  lot,  and  contained  fourteen  acres  and  over. 

The  plaintiff  offered  to  prove,  by  the  person  who  wrote 
the  will,  and  was  a  subscribing  witness  to  it,  that  by  the  in- 
structions given  to  the  witness  by  the  testator,  at  the  time  of 
writing  the  will,  he  was  directed  to  devise  the  lot  in  question, 
containing  about  fourteen  acres,  to  the  plaintiff  in  fee;  and 
that,  by  the  language  or'  the  will,  he  believed  that  such  intent 
was  expressed. 

The  testimony  so  offered  was  overruled  by  the  court,  and 
that  ruling  having  been  excepted  to,  is  assigned  for  error. 

On  the  part  of  the  plaintiff,  it  is  insisted  that  the  evidence 
should  have  been  received  on  the  ground  of  a  mistake  in  the 
will,  to  show  that  the  scrivener  did  not  use  proper  language 
to  express  the  intention  of  the  testator. 

I  know  of  no  rule  of  law,  nor  any  adjudged  case,  on  which 
parol  testimony  has  been  or  can  be  received  to  correct  a  mis- 
take in  a  will.  By  law,  wills  to  pass  real  estate  must  be  in 
writing,  signed  and  published  by  the  testator  in  the  presence 
of  witnesses;  and  it  would  be  inconsistent  with  that  law  to 
permit  parol  proof  to  be  introduced  to  contradict,  add  to,  or 
explain  their  contents.  This  principle  requires  an  inflexible 
adherence  to  it,  even  if  the  consequence  should  be  a  partial, 
or  even  total  failure  of  the  testator's  intention. 

The  formalities  so  carefully  provided  would  be  of  no  value ; 
the  statute  itself  would  be  virtually  repealed,  if  when  the 
written  instrument  is  supposed  not  to  express  the  clear  in- 
tention of  the  testator,  the  deficiency  may  be  supplied,  and 
its  mistakes  corrected  by  extrinsic  evidence.  No  principle 
connected  with  the  law  of  wills  is  more  firmly  established 
or  more  familiar  in  its  application  than  this;  and  it  seems  to 
have  been  acted  upon  by  judges,  of  early  and  of  later  times 
as  well,  with  a  cordiality  and  steadiness,  which  shows  how 
entirely  it  coincided  with  their  own  views.  I  Jarman  on 
Wills  349. 


468         NEW  JERSEY  SUPREME  COURT. 

• ^____ 

Nevius  v.  Martin. 

A  firm  adherence  to  the  rule  is  necessary  to  avoid  the  con- 
sequences of  the  misapprehension  of  the  witness,  and  the 
danger  of  offering  temptation  to  perjury.  This  very  case  is  a 
fair  example  of  the  hazard  of  such  testimony,  where  a  witness 
is  supposed  to  remember  accurately  in  eighteen  hundred  and 
sixty,  the  verbal  instructions  received  from  the  testator  in 
eighteen  hundred  and  forty-two. 

The  authorities  on  the  subject  are  numerous,  and  all  con- 
curring. 

It  will  suffice  to  refer  to  a  single  representative  case,  which 
is  regarded  as  a  leading  authority.  In  Brown  v.  Selwin,  Cos. 
Temp.  Talbot  210,  found  also  in  Bro.  Parl  oases  607,  the 
testator,  having  bequeathed  the  residue  of  his  personal  estate 
to  two  persons,  whom  he  appointed  his  executors,  and  one  of 
whom  was  indebted  to  him  by  bond,  it  was  attempted  to  be 
proved,  by  the  evidence  of  the  person  who  drew  the  will,  that 
he  received  written  instructions  to  release  the  bond  debt  by 
the  will,  but  that  he  refused  to  do  so,  under  the  impression 
that  the  appointment  of  the  obligor  to  be  one  of  the  execu- 
tors extinguished  the  debt.  Lord  Tallmt  held  the  evidence  to 
be  inadmissible,  and  his  decree  was  affirmed  in  the  House  of 
Lords. 

To  the  same  effect  will  be  found  many  English  cases.  And 
Mann  v.  Mann,  14  Johns.  R.  1  ;  Jackson  v.  Sill,  11  Johns. 
R.  201  ;  Tucker  v.  The  Seamen's  Aid  Society,  7  Mete.  189 ; 
Hand  v.  Hoffman,  3  Halst.  71,  are  fair  examples  of  the 
American  case*. 

But  it  is  further  insisted  that  the  testimony  was  admissible 
to  show  or  to  remove  an  ambiguity. 

If  so,  it  must  be  a  latent  ambiguity,  one  which  does  not 
appear  on  the  face  of  the  will,  but  lies  hidden  in  the  |>erson 
or  thing  or  subject  of  which  it  treats.  No  parol  evidence  or 
evidence  dehors  can  be  received,  unless  it  be  to  show  a  latent 
ambiguity,  or  to  remove  one.  The  ambiguitus  patens  raise  no 
question  for  a  jury  or  for  the  aid  of  witnesses,  but  is  one  of 
pun-  legal  construction  for  the  court.  Hand  v.  Hoffman,  3 
.  R.  78  ;  Den  v.  CitMcrly,  7  Halst.  R.  308. 


FEBRUARY  TERM,  1864.  469 

Nevius  v.  Martin. 

Is  there  a  latent  ambiguity  in  the  clause  of  the  will  iii 
question  ? 

The  language  is :  "I  give  and  bequeath  to  my  nephew, 
Peter  Nevius,  one  acre  of  land  joining  the  road  leading  from 
Metuchen  to  Bonhamtown  on  the  west,  and  my  house  lot 
on  the  east."  This  seems  to  be  very  explicit  and  appropriate 
language  to  devise  one  acre  of  land,  describing  it  as  bounded 
by  the  road  on  the  west,  and  by  the  house  lot  on  the  east. 
It  is  as  clear  as  if  the  expression  had  been,  joining  the  road 
on  the  west,  and  joining  the  house  lot  on  the  east.  Should 
.any  possible  doubt  arise  from  that  part,  it  is  removed  by 
what  follows,  namely :  "  but  if  the  said  Peter  Nevius  should 
die  before  the  age  of  twenty-one  years,  I  give  said  lot  to  his 
brother,  John  Nevius."  This  is  a  devise  over  of  one  lot,  and 
not  of  two,  and  clearly  manifests  the  intention  of  the  testator. 
And,  although  at  the  time  of  making  the  will,  or  before  or 
.afterwards,  the  fences  between  the  lots  were  removed,  and 
all  the  land  occupied  as  one  tract,  yet  the  testator  had  in  his 
mind  two  distinct  lots,  and  as  they  were  when  he  purchased 
the  one  acre  lot,  and  he  uses  the  terms  "  one  acre  of  land " 
adjoining  the  road  "and  my  house  lot." 

I  can  see  no  intention  of  devising  two  lots,  nor  any  am- 
biguity, latent  or  patent,  hidden  or  open. 

I  think  the  testimony  was  properly  overruled,  and  that  no 
>error  is  shown. 

The  judgment  must  therefore  be  affirmed  with  costs. 

OGDEN,  J.  The  plaintiff  claimed  the  premises  in  question, 
being  the  house  lot  of  David  R.  Martin,  deceased,  by  and 
.through  the  will  of  said  Martin. 

In  support  of  his  title,  he  gave  the  will  and  probate  thereof 
in  evidence  before  the  jury.  After  ordering  his  debts  to  be 
paid,  the  testator  gave  to  his  wife,  in  lieu  of  her  dower,  some 
personal  estate,  and  the  use,  during  her  natural  life,  of  all 
his  real  estate,  consisting  of  a  house  and  fourteen  and  a  half 
-acres,  where  he  then  dwelt,  with  all  the  appurtenances ;  one 
wood  lot,  containing  three  and  a  half  acres,  giving  its  bounda- 


470          NEW  JERSEY  SUPREME  COURT. 

Nevius  v.  Martin. 

ries,  ami  two  lots  of  salt  meadow,  stating  that  the  wood  lot 
ami  salt  meadow  were  devised  to  him  by  his  father.  After 
giving  directions  al>out  the  sale  of  a  nine  acre  lot,  and  the 
disj)osal  of  the  proceeds  of  the  sale,  he  made  the  following 
devise,  it  being  the  clause  in  the  will  through  which  the 
plaintiff  claims  title: 

Item.  "  After  the  death  of  my  said  wife,  I  give  and  be- 
queath to  my  nephew,  Peter  Xevius,  one  acre  of  land,  joining 
the  road  leading  from  Metuchen  to  Bonhamtown  on  the  west, 
and  my  house  lot  on  the  east;  but  if  said  Peter  Nevius 
should  die  before  the  age  of  twenty-one,  I  give  said  lot  to 
his  brother,  John  Nevius."  He  then  directed  his  executors 
to  sell  all  his  real  estate  after  the  death  of  his  wife. 

The  plaintiff  contended  that  the  devise  to  him  embraced 
the  house  lot  of  fourteen  and  a  half  acres,  insisting  that  the 
description  of  the  one  acre  was  full,  by  placing  it  on  the  road 
leading  from  Metuchen  to  Bonhamtown,  and  that  the  re- 
mainder of  the  sentence  was  an  additional  devise  to  him  of 
the  house  lot. 

In  support  of  his  claim,  his  counsel  proposed  to  prove  by 
Abraham  D.  Titswortb,  the  scrivener,  who  drew  the  will  at 
testator's  request,  that  by  the  instructions  given  to  him  by 
the  testator,  at  the  time  of  writing  the  will,  he  was  directed 
to  devise  the  lot  in  question,  containing  al>out  fourteen  acres, 
to  the  plaintiff  in  fee,  and  that,  by  the  language  in  that  re- 
spect used  in  said  will,  he  believed  that  such  intent  was  ex- 
pressed. 

The  counsel  for  the  defendants  objected  to  the  admissibility 
of  the  oral  testimony,  and  the  court  overruled  the  offer,  and 
rejected  the  testimony  as  illegal  in  support  of  the  issue.  Au 
exception  was  preyed,  by  the  counsel  of  the  plaintiff,  to  the 
decision  of  the  court,  which  \\:i>  allowed  and  scaled. 

Was  the  testimony  legally  admissible?  If  so,  on  what 
principle? 

The  case  states  that  the  testator,  at  the  date  of  the  will, 
owned  a  lot  of  about  one  acre,  which  lie  purchased  of  Jona- 
than Acken  and  wife,  by  deed,  June  17th,  1840;  that  it  ad- 


FEBRUARY  TERM,  1864.  471 


Kevins  v.  Martin. 


joins  the  road  leading  from  Metuchen  to  Bonhamtowo  on 
the  west,  and  testator's  house  lot  on  the  east ;  that  when  con- 
veyed to  the  testator,  it  was  separated  by  a  fence  from  the 
house  lot ;  but  after  the  purchase,  the  fence  was  suffered  to  go 
down,  and  at  or  some  time  before  the  testator's  death  there  was 
no  fence  between  the  two.  The  testator  lived  on  the  house  lot, 
which  lay  east  of  the  one  acre  lot,  and  contained  over  fourteen 
acres. 

The  will  is  dated  July  15th,  1842. 

This  testimony  was  offered  to  remove  a  latent  ambiguity  in 
the  will. 

Is  there  such  an  ambiguity  in  the  words  of  this  will,  ren- 
dered so  by  extrinsic  and  collateral  matter  out  of  the  instru- 
ment itself? 

Does  any  ambiguity  lie  hidden  in  the  persons  or  subjects 
whereof  the  will  speaks?  Does  not  the  question  raised  by 
the  plaintiff  grow  out  of  the  construction  of  the  language 
employed  by  the  testator? 

If  the  word  and  is  construed  to  apply  to  the  description 
of  the  one  acre  lot  the  plaintiff's  case  falls.  If  it  be  con- 
strued as  describing  the  house  lot  on  the  east  as  a  subject  of 
devise  to  Peter,  then  the  plaintiff's  title  is  made  out.  How 
could  a  conversation  between  the  testator  and  the  scrivener 
aid  in  construing  the  sentence?  There  is  no  uncertain  per- 
son to  take,  and  no  uncertain  thing  described,  and  no  iden- 
tification of  person  or  subject  of  devise  required.  The  one 
acre  and  the  house  lot  are  certain  subjects  of  devise,  and 
Peter  was  a  certain  man,  and  they  cannot  be  rendered  more 
certain  by  proof  of  extraneous  facts  and  surrounding  circum- 
stances. 

The  case  does  not  fall  within  the  rule,  which  allows  the 
introduction  of  oral  testimony  to  explain  the  written  lan- 
guage. If  there  be  no  latent  ambiguity,  the  construction  of 
a  will  must  be  drawn  from  the  words ;  and  parol  evidence 
cannot  be  admitted  to  supply,  contradict,  enlarge,  or  vary  the 
words,  or  to  explain  the  intention  of  the  testator.  3  Haht. 
72,  Evidence. 


472          NEW  JERSEY  SUPREME  COURT. 

Nevius  v.  Martin. 

If  any  ambiguity  exists  here,  it  is  patent  on  the  face  of  the 
will,  and  was  a  question  of  judicial  construction  for  the  court. 

Again.  Should  the  testimony  have  been  admitted  to  cor- 
rect alleged  mistakes  of  the  scrivener? 

The  case  cited  in  7  Johnson,  of  Johnson  v.  Clark,  does  not 
support  the  proposition.  "  The  power  of  devising  by  last  will 
and  testament  would  be  deeply  impaired  by  accepting  any 
other  evidence  of  the  testator's  intention,  than  what  is  to  be 
gathered  from  the  will  itself,"  if  it  can  have  an  effective  opera- 
tion without  the  aid  of  the  testimony. 

A  different  rule  would  lead  to  the  making  of  wills  in  court, 
and  not  to  the  legal  construction  of  them. 

The  present  case  furnishes  a  strong  illustration  of  the  wis- 
•dom  and  safety  of  the  rule. 

In  1842,  the  testator  made  his  will,  in  language  capable  of 
receiving  an  effective  operation  in  consistency  with  the  sur- 
rounding facts,  and  eighteen  years  afterwards,  the  scrivener  is 
called  to  testify  that  he  was  instructed  to  draw  a  different 
will,  and  supposed  that  the  language  which  he  employed 
created  a  devise  different  from  that  which  a  proper  construc- 
tion of  the  clause  will  support. 

The  admission  of  the  testimony  would  have  tended  to  make 
a  new  will  for  the  testator. 

I  am  clearly  of  opinion  that  there  was  no  error  in  rejecting 
the  testimony. 

The  court  gave  a  projKjr  construction  to  the  clause  in  the 
will,  by  ruling  that  the  introduction  into  it  of  the  house  lot, 
was  only  descriptive  of  one  of  the  Ixmndaries  of  the  one  acre 
lot,  and  that  the  house  lot  did  not  pass  to  the  plaintiff  by  the 
devise  therein  made  to  him,  and  properly  ordered  the  plaintiff 
to  be  called. 

The  judgment  below  must  be  affirmed  with  costs. 

VRKDENBURQH,  J.,  concurred. 

Judgment  affirmed. 

ClTKD  in  GrUcum  v.  Event,  11  Vroom  408. 


FEBRUARY  TERM,  1864.  473 


State  v.  Delaware,  Lackawanna,  and  Western  R.  R.  Co. 


THE  STATE  OF  NEW  JEESEY  v.  THE  DELAWARE,  LACKA- 
WANNA, AND  WESTERN  RAILROAD  COMPANY. 

THE   STATE   OF   NEW   JERSEY  v.   THE   NEW  YORK   AND 
ERIE  RAILWAY  COMPANY. 

1.  A  law  laying  a  special  tax  on  the  business  of  foreign  corporations, 
regularly  doing  business  in  this  state,  transporting  passengers  and 
merchandise  across  the  state,  from  and  to  foreign  states,  such  tax  being 
graduated  by  the  number  of  the  passengers  and  the  weight  of  the 
goods  carried,  is  not  an  infringement  of  that  clause  of  the  constitution 
of  the  United  States  which  gives  to  congress  the  power  to  regulate 
commerce  among  the  several  states. 

2.  Such  commerce  is  not  of  such  a  national  character,  that  a  state  may 
not  regulate  it  in  the  manner  complained  of,  without  violating  the 
constitution  of  the  United  States. 

3.  Such  tax  is  merely  a  tax  upon  the  company,  in  proportion  to  the 
number  of  passengers  and  weight  of  merchandise  transported  by  them 
within  this  state,  and  not  a  regulation  of  commerce  among  the  states,. 

4.  A  foreign  corporation,  upon  which  has  been  conferred  by  the  legisla- 
ture of  this  state  the  power  to  purchase  and  hold  lands  in  this  state, 
does  not,  by  reason  of  such  legislative  action,  lose  its  foreign,  and  ac- 
quire a  domestic  character.    A  corporation  can  be  properly  said  to 
exist  only  in  the  state  which  created  it. 


These  suits  were  brought  by  the  state  to  recover  the  amount 
of  the  transit  duty  claimed  to  be  due  from  the  defendants,  re- 
spectively, for  the  passengers,  goods,  wares,  and  merchandise 
transported  by  them,  or  for  them,  on  certain  railroads  in  this 
state,  a  distance  exceeding  ten  miles. 

The  claims  are  made  by  the  state,  under  the  10th  section  of 
the  act  of  March  28th,  1862,  entitled  "  a  further  supplement 
to  an  act  entitled,  an  act  concerning  taxes,"  approved  April 
14th,  1846. 

This  section  provides,  that  all  corporations  regularly  doing 
business  in  this  state,  and  not  being  corporations  of  this  state, 
shall  be  assessed  and  taxed  for  and  in  respect  of  the  business 
so  by  them  done  and  transacted  in  this  state,  in  manner  fol- 
lowing, that  is  to  say  :  "  every  such  company  so  doing  business 
shall  pay  a  transit  duty  o'f  three  cents  on  every  passenger, 


474          NEW  JERSEY  SUPREME  COURT. 


State  v.  Delaware,  Lackawanna,  and  Western  R.  R  Co. 


and  two  cents  on  every  ton  of  goods,  wares,  and  merchan- 
dise, or  other  articles,  carried  or  transported  by  or  for  such 
company,  or  on  any  railroad  or  canal  in  this  state,  for  any 
distance  exceeding  ten  miles,  except  passengers  and  freight 
trans|>orted  exclusively  within  this  state,  &c. ;  and  such 
transit  duty  for  railroad  or  canal  transportation  shall  be  paid 
to  the  treasurer  of  this  state  within  the  month  of  January, 
in  each  year,  for  the  transportation  of  the  previous  year; 
and  it  shall  be  the  duty  of  the  president  or  treasurer  of  every 
such  company  to  furnish  to  the  treasurer  of  the  state,  by  or 
before  the  third  Tuesday  of  January,  annually,  under  oath 
or  affirmation,  a  full  and  true  account  of  the  number  of  pas- 
sengers and  of  the  number  of  the  tons  of  goods,  wares,  and 
merchandise,  and  other  articles,  so  carried  or  transported  as 
aforesaid." 

An  issue  was  made  up  l>etween  the  state  and  the  defend- 
ants, respectively,  and  were  cases  agreed  on  to  be  submitted  to 
the  Supreme  Court,  for  their  decision  without  a  jury,  accord- 
ing to  the  provisions  of  the  act  of  March  13th,  1862,  enti- 
tled "  an  act  relative  to  taxes  due  from  incor|K>rated  compa- 
nies in  this  state,"  and  a  supplement  thereto,  passed  March 
llth,  1863. 

It  appeared  that  the  Delaware,  Lackawanna,  and  Western 
Railroad  Company  was  incorporated  by  the  state  of  Pennsyl- 
vania, and  the  New  York  and  Erie  Railway  Company  was 
incorporated  by  the  state  of  New  York,  and  that  both  com- 
panies carried  and  trans{K>rted  through  the  state  of  New 
Jersey,  for  a  distance  of  more  than  ten  miles,  on  railroads  in 
this  state,  and  operated  by  the  said  defendants,  under  lease 
or  agreement  made  or  entered  into  by  said  defendants  with 
the  companies  owning  said  railroads,  and  so,  by  transhipment 
to  New  York  and  other  places,  passengers  and  freight,  brought 
over  their  roads  in  New  York  and  Pennsylvania  and  other 
connecting  road.s  from  the  west. 

The  defendants  claimed — 

Firitl.  That  they  were  not  within  the  provisions  of 
the  act  of  1862;  that  owning  property  and  using  roads  in 


FEBRUARY  TERM,  1864.  475 

State  v.  Delaware,  Lackawanna  and  Western  R.  E.  Co. 

this  state  by  its  permission,  they  could  not  be  considered 
foreign  corporations  within  the  meaning  of  the  act;  and 

Secondly.  That  if  within  its  provisions,  that  the  act  itself  is 
an  infringement  of  that  part  of  the  constitution  of  the  United 
States  which  confers  upon  congress  the  power  to  regulate  com- 
merce with  foreign  nations  and  among  the  several  states,  &c. ; 
that  the  power  of  congress  is  exclusive,  and  cannot  be  con- 
trolled or  interfered  with  by  the  states. 

All  the  facts  contained  in  the  cases  agreed  on,  having  any 
practical  bearing  on  the  questions  submitted  and  decided,  will 
be  found  referred  to  by  the  court  in  their  opinion. 

Both  causes,  involving  the  same  general  principles,  were 
argued  together  at  the  November  term,  1863. 

For  the  state,  F.  T.  Frdlnghuysen,  attorney  general. 

For  the  several  defendants,  Jehiel  G.  Shipman,  David  A. 
Depue,  and  Isaac  W.  Scudder. 

At  this  term,  February,  1864,  the  following  opinions  were 
delivered. 

HAINES,  J.  This  cause  comes  to  us  on  a  special  case,  made 
pursuant  to  the  act  of  March  13th,  1862,  relative  to  taxes  due 
from  incorporated  companies  in  this  state,  and  its  supplement, 
of  March  llth,  1863,  making  it  applicable  to  incorporated 
companies,  whether  in  this  state  or  not.  The  object  of  the 
suit  is  to  test  the  validity  of  a  claim  for  tax,  alleged  to  be  due 
to  the  state  from  the  defendants,  under  the  10th  section  of  the 
act  of  28th  March,  1862,  which  is  a  supplement  to  the  act 
concerning  taxes. 

This  10th  section  provides,  "that  all  corporations  regu- 
larly doing  business  in  this  state,  and  not  being  corporations 
of  this  state,  shall  be  assessed  and  taxed  for  and  in  respect 
of  the  business  so  by  them  done  and  transacted  in  this  state, 
in  manner  following,  that  is  to  say  :  every  such  company  shall 


476          NEW  JERSEY  SUPREME  COURT. 


Slate  v.  Delaware,  Lackawamm  ami  Western  R.  R.  Co. 


pay  a  transit  duty  of  three  cents  on  every  passenger,  and  two* 
cents  on  every  ton  of  goods,  wares,  and  merchandise,  or  other 
articles,  carried  or  transported  by  or  for  such  company  on  any 
railroad,  or  carried  in  this  state  for  any  distance  exceeding  ten 
miles,  except  passengers  and  freight  transported  exclusively 
within  tin's  state." 

The  case  shows  the  number  of  passengers  and  tons  of  freight 
so  transported  by  the  defendants ;  whether  they  are  liable  to 
be  assessed  and  taxed  for  the  business  so  done  by  them,  is  the 
question  to  be  decided. 

.  It  is  insisted  that  this  company  is  not  liable  to  the  tax 
claimed — first,  because  it  is  not  a  company  regularly  doing 
business  in  this  state.  But  the  case  shows  that  they  are  the 
lessees  of  the  Warren  railroad,  for  the  transportation  of  coal 
and  other  merchandise,  and  of  passengers,  a  distance  exceed- 
ing ten  miles  within  this  state;  and  if  this  be  so,  they  are  a 
corporation  regularly  doing  business  in  this  state. 

It  is  further  objected  that  there  is  no  liability  on  the  de- 
fendants, because  they  are  not  wilhin  the  terms  of  the  de- 
scription, "not  being  corporations  of  this  state;"  that  the 
legislature,  by  authorizing  the  defendants  to  purchase  and 
hold  lands  here,  and  to  lease  the  Warren  railroad,  created 
them  a  corporation  of  this  state;  that  the  company  thereby 
lost  its  foreign,  and  acquired  a  domestic  character.  By  the 
state  of  the  case,  it  appears  that  the  Delaware,  Lackawanna, 
and  Western  Railroad  Company  was  created  by  an  act  of  the 
legislature  of  Pennsylvania.  And  the  act  of  New  Jersey, 
conferring  upon  it  jniwer  to  purchase  and  hold  lands  in  this 
state,  calls  it  a  corporation  existing  under  the  laws  of  Penn- 
sylvania. The  state  which  creates  a  corporation  gives  it  » 
local  habitation  as  well  as  a  name,  and  there  only  it  can  prop- 
erly IK;  said  to  exist.  Its  arms  and  operations  may  extend 
Ix-yond,  but  the  body,  the  source  of  its  vitality,  is  limited  to 
the  plait!  of  its  nativity.  Powers  and  privileges  may  be 
conferred  by  another  state,  but,  that  does  not  divest  the  cor- 
poration of  it«  foreign  character.  The  rights  of  citizenship 


FEBRUARY  TERM,  1864.  477 

State  v.  Delaware,  Lackawanna,  and  Western  E.  R.  Co. 

conferred  upon  an  alien  make  him  a  naturalized,  but  not  quite 
a  native  born  citizen. 

In  the  case  of  The  Phillipsburg  Bank  v.  The  Lackawanna 
Railroad  Company,  3  Dutcher  206,  on  a  motion  to  quash  a 
writ  of  attachment  issued  against  the  latter,  it  was  urged 
that  the  act  authorizing  the  defendants  to  hold  land  and  to 
transact  business  within  this  state  did,  of  necessity,  consti- 
tute them  a  domestic  corporation,  as  much  so  as  if  chartered 
by  the  laws  of  this  state.  But  this  court  held  that  the  legis- 
lature has  clearly  distinguished  between  the  creation  and  the 
recognition  of  a  corporation.  That  the  one  refers  clearly  to 
a  domestic  corporation,  having  its  place  within  this  state  and 
subject  in  all  respects  to  the  control  of  its  laws,  the  other  to 
a  foreign  corporation,  having  its  place  within  another  state, 
deriving  its  being  from  and  subject  to  the  control  of  the  laws 
of  such  state,  but  recognized  by  the  laws  of  this  state,  as 
having  power  to  exercise  its  franchises  or  transact  its  busi- 
ness here. 

These  objections  cannot  prevail,  and  it  must  be  held  that 
the  defendants  are  one  of  the  corporations  contemplated  by 
the  act  under  which  the  tax  is  claimed. 

A  more  serious  question  is  raised  upon  the  constitutionality 
of  the  act.  It  is  insisted,  by  the  counsel  of  the  defendants, 
that  it  is  in  violation  of  the  8th  section  of  the  first  article  of 
the  constitution  of  the  United  States,  which  confers  upon  the 
congress  of  the  United  States  the  power  to  regulate  commerce 
with  foreign  nations  and  among  the  several  states. 

It  is  claimed  that  this  power  conferred  on  congress,  has 
'been  adjudged  to  be  exclusive,  and  that  any  attempt  on  the 
part  of  a  state,  to  regulate  commerce  among  the  states  by  in- 
terfering with  its  freedom,  or  making  hostile  or  burthensome 
discriminations,  is  an  infringement  of  that  power  and  void ; 
and  that,  in  the  strong  and  terse  language  of  Judge  Grier, 
in  the  Passenger  cases,  7  How.  464,  "  congress  has  regulated 
commerce  and  intercourse  between  the  states  by  willing  that 
it  shall  be  free."  If  this  position  is  conceded,  it  must  be 
with  considerable  modification. 

VOL.  I.  2  G 


478          NEW  JERSEY  SUPREME  COURT. 

State  v.  Delaware,  Lackawanna,  and  Western  R.  R.  Co. 

By  the  term  commerce,  is  meant  not  traffic  only,  but  every 
species  of  commercial  intercourse,  every  communication  by 
land  or  by  water,  foreign  and  domestic,  external  and  internal. 
Hence  the  power  to  regulate  it  must,  in  the  language  of  Judge 
Curtis,  in  Cooley  v.  The  Hoard  of  Wardens  of  Philadelphia,* 
"embrace  a  vast  field,  containing  not  only  many,  but  exceed- 
ingly various  subjects,  quite  unlike  in  their  nature;  some  im- 
peratively demanding  a  single  uniform  rule  operating  equally 
on  the  commerce  of  the  United  States  in  every  ]>ort,  and  some 
as  imperatively  demanding  that  diversity  which  alone  can  meet 
the  local  neces-sities  of  navigation/'  and  it  may  be  added,  the 
local  necessities  of  domestic  intercourse.  "  Where  the  subjects 
of  such  intercourse,"  continues  Judge  Curtis,  "  are  in  their  na- 
ture national,  and  require  a  uniform  system  of  regulation,  they 
may  justly  be  said  to  require  exclusive  legislation  by  congress." 

When  commerce  is  of  this  national  character,  there  is  no 
constitutional  or  legal  power  in  a  state  to  interrupt,  impede, 
or  regulate  it.  But  where  it  has  not  such  national  character, 
the  states  do  many  things  to  regulate  it,  and  some  that  more 
or  less  affect  commercial  intercourse  without  any  violation  of 
the  constitution. 

Laws,  for  example,  for  the  regulation  of  pilots  and  pilot- 
age, are  not  questioned  as  to  their  constitutionality.  The 
regulation  of  the  fares  and  tolls  on  turnpikes,  railroads,  and 
ferries,  even  directly  between  two  states,  is  wholly  within 
the  jurisdiction  of  the  states,  and  such  power  has  been  con- 
tinually exercised,  and  in  the  case  of  The  Chosen  Freeholders 
»f  Hudson  County  v.  The  Mite,  4  Ziib.  730,  it  was  held,  by 
the  Court  of  Errors,  that  the  exercise  of  such  power  was  in ' 
no  wise  repugnant  to  the  provision  of  the  constitution. 

It  is  further  insisted,  that  the  act  in  question  practically 
lays  a  tax  uj>on  im|>orts  and  ex|x>rts,  and  so  violates  the  10th 
.section  of  the  first  article  of  the  constitution  of  the  United 
.Suites,  which  provides  that  no  state  shall,  without  the  con- 
tx'tit  of  congress,  lay  any  imposts  or  duties  on  im|X)rts  or 
cxportH.  If  that  be  true,  the  act  is  clearly  unconstitutional, 

•12  How.  299. 


FEBRUARY  TERM,  1864.  479 

State  v.  Delaware,  Lackawanna,  and  Western  R.  K.  Co. 

no  consent  of  congress  for  that  purpose  having  ever  been 
given. 

This  leads  to  the  important  inquiry — does  the  act  in  ques- 
tion attempt  to  interrupt  or  to  regulate  commerce,  or  to  im- 
pose duties  or  imposts  on  exports  or  imports  ? 

It  does  not  exclude  from  the  state  any  class  of  persons  or 
of  property,  or  of  vessels  or  other  vehicles  of  transportation, 
as  did  the  act  of  New  York,  which  granted  to  certain  indi- 
viduals the  exclusive  use  of  its  waters  for  navigation  of  ves- 
sels propelled  by  fire  or  steam,  and  which  was  declared  to  be 
unconstitutional  in  Gibbons  v.  Ogden,  9  Wheat.  1. 

Nor  does  it  prohibit  or  restrain  the  sale,  and  thereby  tend 
to  impede  the  importation  of  any  article,  by  requiring  the 
vendor  to  obtain  a  license  to  sell,  as  in  Brown  v.  The  State 
of  Maryland,  12  Wheat.  419,  and  in  the  License  cases,  5 
How.  504. 

It  imposes  no  impost,  tax,  tribute,  or  duty,  directly  or  in- 
directly, on  passengers  or  goods,  and  is  not  within  the  princi- 
ple of  the  Passenger  cases,  7  How.  283. 

Nor  does  it  impede  the  export  of  any  article,  by  requiring 
stamps  upon  bills  of  lading  or  otherwise,  and  is  not  within 
the  ruling  of  Almy  v.  The  State  of  California,  24  How.  169. 
It  makes  no  discrimination  between  the  property  of  citizens 
of  this  state  or  of  other  states ;  nor  are  the  passengers  or  the 
owners  of  goods,  or  the  goods  themselves,  in  any  wise  made 
subject  to  the  tax,  or  retarded  by  it. 

The  tax  is  laid  upon  the  company  without  inspect  to  the 
ownership  of  the  goods,  or  to  the  residence  of  the  passengers. 
It  is  not  enforced  by  levy  and  distress ;  but  is  required  to  be 
paid  by  the  company  into  the  treasury  of  the  state,  and  in 
default  of  payment,  to  be  recovered  by  an  action  at  law. 

It  is  a  tax  upon  the  company  "  for  and  in  respect  of  the 
business  by  them  done  and  transacted  within  this  state," 
computed  by  the  tons  of  merchandise  and  numbers  of  pas- 
sengers transported.  There  is  no  ad  valorem  clause;  all 
goods  are  estimated  by  the  ton,  whether  they  consist  of  iron 
or  gold,  coals  or  diamonds,  tow  cloth  or  laces,  vinegar  or 


430         NEW  JERSEY  SUPREME  COURT. 

State  v.  Delaware,  Lackawanna,  and  Western  K.  R.  Co. 

wine.  Had  the  act  provided  that  the  company  should  pay  a 
certain  sum  for  every  car  or  every  locomotive  employed,  the 
right  to  do  so  would  hardly  have  been  questioned. 

The  right  to  tax  carriages  habitually  used  in  the  state  will 
not  be  denied.  Had  the  act  required  the  payment  of  a  per 
centage  on  the  earnings  of  the  company  from  its  operations 
here,  it  would  have  been  within  the  principle  on  which  in- 
comes are  assessed. 

The  tax  in  question  is  neither  more  nor  less  than  a  tax  on  the 
income  of  the  company,  from  its  business  in  this  state,  the 
easiest  mode  of  ascertaining  which,  is  by  the  company's  an- 
nual statement  of  the  number  of  passengers  and  of  the  tons 
of  merchandise  transported. 

It  imposes,  it  is  true,  this  tax  on  a  foreign  corporation,  and 
because  it  is  foreign.  Were  it  domestic,  it  would  be  taxed 
on  its  capital  or  its  cost,  and  be  subjected  to  a  ranch  greater 
burthen.  But  being  foreign,  it  is  relieved  from  the  heavier 
duty.  This  corporation  enjoys  the  franchise  of  the  state ;  its 
property  here  and  all  its  rights  are  under  the  protection  of 
the  laws  of  this  state,  and  there  is  no  reason  why,  in  common 
with  the  corporations  and  citizens  of  the  state,  it  should  not 
bear  its  fair  proportion  of  the  expenses  and  burthens  of  the 
state  government. 

It  may  be  that  the  rate  of  taxation  is  too  high,  and  so  op- 
erates unequally;  but  that  is  a  matter  of  legislative  action, 
and  not  of  judicial  construction.  The  remedy  is  to  be  found 
in  the  legislature,  and  not  in  the  courts. 

It  is  contended  further,  that  the  act  in  question  is  in  viola- 
tion of  that  clause  of  the  constitution  of  New  Jersey  which 
forbids  the  passage  of  any  law  impairing  the  obligation  of 
contract*;  that  the  charter  of  the  Warren  Railroad  Com- 
pany imposes  a  certain  tax  on  its  capital,  and  exempts  the 
company  from  any  further  or  other  tax;  and  that  the  tax  im- 
|H«ed  by  this  act  is  virtually  a  further  tax  on  the  Warren 
Railroad  Company. 

If  it  be  admitted,  for  the  sake  of  the  argument,  that  the 
Warren  Railroad  Company,  by  an  irrepcalable  contract  in 


FEBRUARY  TERM,  1864.  481 

State  v.  Delaware,  Lackawanna  and  Western  E.  R.  Co. 

their  charter,  are  exempt  from  further  taxation,  and  there- 
fore within  the  exception  of  the  8th  section  of  the  act  in 
question,  it  is  difficult  to  perceive  how  this  tax  is  laid  upon 
them.  It  is  not  charged  upon  them,  nor  upon  their  property, 
nor  does  it  diminish  the  value  of  their  receipts  for  rent  or 
otherwise.  The  defendants,  by  the  terms  of  the  lease  of  the 
road  to  them,  are  required  "  to  pay  and  discharge  all  taxes, 
assessments,  and  impositions  which  shall  or  may  be  legally 
taxed,  assessed,  or  imposed  upon  the  premises  and  property" 
leased  to  them.  An  additional  tax  cannot  affect  the  Warren 
Railroad  Company. 

The  defendants,  as  lessees,  can  on  that  account  claim  no 
exemption.  The  tax  is  not  on  the  Warren  Railroad  Com- 
pany, nor  upon  their  road,  stock,  property,  or  franchises.  It 
is  simply  upon  the  defendants  in  respect  of  their  profits  and 
earnings  by  the  transportation/  in  this  state,  of  passengers 
.and  property.  Were  they  not  operating  the  road,  and  regu- 
larly doing  business  upon  it,  they  would  not  be  subject  to 
the  tax;  but  as  they  are  lessees  operating  the  road  and 
regularly  doing  business  upon  it,  they  may  with  propriety  be 
asked  to  pay  something  on  the  profits  of  the  business,  and  to 
contribute  something  to  the  support  of  the  government  whose 
privileges  they  enjoy,  and  under  whose  protection  and  laws 
they  prosecute  their  business. 

The  principle  of  the  section  of  the  act  in  question  is  not 
novel,  nor  its  application  without  precedent. 

By  the  act  of  February  4th,  1830,  the  Camden  and  Amboy 
Railroad  and  Transportation  Company  were  required  to  pay 
to  the  state  at  the  rate  of  ten  cents  for  each  passenger,  and 
fifteen  cents  for  each  ton  of  merchandise,  transported  on  their 
road.  By  subsequent  acts,  the  payment  for  passengers  was 
made  applicable  to  those  transported  over  the  whole  line  of 
the  road — to  through  passengers. 

By  the  act  of  March  7th,  1832,  the  New  Jersey  Railroad 
and  Transportation  Company  were  required  to  pay  a  tax  on 
their  capital ;  and  when  thereupon  any  railroad  should  inter- 
sect or  be  attached  to  their  road,  so  as  to  make  a  continued 


482          NEW  JERSEY  SUPREME  COURT. 


State  v.  Delaware,  Lackawanna  and  Western  R.  R.  Co. 


railroad,  carrying  passengers  across  the  state  of  New  Jersey 
between  the  states  of  New  York  and  Pennsylvania,  then 
they  were  required  to  pay  into  the  treasury  of  the  state  at 
the  rate  of  eight  cents  for  every  passenger,  and  twelve  cents 
for  every  tod  of  merchandise  transported  thereon. 

Nor  are  these  precedents  confined  to  this  state. 

The  legislature  of  Maryland,  by  an  act  of  1832,  authorized 
the  Baltimore  and  Ohio  Railroad  Company  to  construct  a 
branch  road  from  Baltimore  to  the  city  of  Washington,  fixed 
the  fare  of  each  passenger  at  two  dollars  and  fifty  cents ;  and 
then  required  the  company  to  pay,  serui-annually  to  the  trea- 
surer of  the  Western  Shore  of  Maryland,  one-fifth  of  the 
whole  amount  received  for  the  transportation  of  passengers 
over  their  said  branch  road. 

The  legislature  of  Pennsylvania,  by  an  act  of  21st  April,. 
1846,  granted  the  assent  of  the  state  to  the  Baltimore  and 
Ohio  Railroad  Company,  to  locate  and  construct  a  continua- 
tion of  their  railroad  from  the  town  of  Cumberland,  in  the 
state  of  Maryland,  to  the  city  of  Pittsburgh  ;  and  required  the 
company  to  |>ay,  every  six  months,  into  the  treasury  of  the 
state,  as  a  tax  or  duty  on  all  tonnage,  except  the  ordinary  bag- 
gage of  passengers  transited  on  that  continuation  of  their 
road,  such  tax  as  the  legislature  might  impose,  not  exceeding 
three  mills  per  ton  per  mile;  and  in  addition  thereto, a  tax  or 
duty  on  all  |>assengers  that  may  have  passed,  during  each  pre- 
ceding six  months,  a  distance  of  one  hundred  miles  or  mom 
of  said  road  between  these  points,  at  such  rate  as  the  legisla- 
ture might  direct,  not  exceeding  fifty  cents  for  each  passenger, 
until  the  construction  of  a  railroad  connecting  the  Baltimore 
and  Ohio  railroad  with  the  CutnU'Hand  Valley  railroad,  by 
the  Cumberland  Valley ;  after  that,  the  tax  or  duty  not  to 
exceed  twenty-five  cents  for  each  passenger. 

By  an  act  26th  March,  1846,  the  legislature  of  Pennsyl- 
vania granted  authority  to  the  New  York  and  Erie  Railroad 
Company,  to  extend  their  line  of  railroad  from  a  point  in  the 
village  of  Port  Jervis,  in  the  state  of  New  York,  across  the 
Delaware  river,  into  the  county  of  Pike,  in  the  state  of 


FEBRUARY  TERM,  1864.  483 

State  v.  Delaware,  Lackawanna,  and  Western  R.  R.  Co. 

Pennsylvania,  and  up  the  valley  near  the  shore  of  the  river, 
a  distance  not  exceeding  thirty  miles;  and  the  stock  of  the 
f  company,  equal  in  amount  to  the  cost  of  such  construction  in 
Pennsylvania,  was  made  subject  to  taxation  in  the  same  man- 
ner and  to  the  same  amount  as  other  similar  property  was  or 
might  be  made  subject.  And  the  company  was  further  re- 
quired, after  the  completion  and  operation  of  their  road  to 
Dunkirk,  or  its  connection  with  any  railroad  to  Lake  Erie,  to 
pay  into  the  treasury  of  Pennsylvania  the  annual  sum  of  ten 
thousand  dollars,  on  the  penalty  of  forfeiture  of  the  rights  and 
privileges  granted  by  the  act. 

In  the  state  of  New  York,  too,  we  find  an  act,  as  early  as 
April  15th,  1817,  respecting  navigable  communication  be- 
tween the  great  western  and  northern  lakes  and  the  Atlantic 
ocean ;  and  for  the  purpose  of  raising  a  canal  fund,  various 
taxes  were  imposed,  among  others,  "  a  tax  of  one  dollar  upon 
each  steamboat  passenger,  for  each  and  every  trip  or  voyage 
such  passenger  may  be  conveyed  on  the  Hudson  river  on 
board  of  any  steamboat  over  one  hundred  miles;  and  half 
that  sum  for  any  distance  less  than  one  hundred  miles  and 
more  than  thirty  miles." 

These  acts,  except  the  last  named,  have  long  been  in  force, 
and  public  attention  almost  constantly  directed  to  them. 
Great  complaints,  indeed,  have  been  made  by  parties  inter- 
ested, and  perhaps  by  others,  against  the  mode  of  taxation. 
The  acts  of  this  state,  particularly,  have  been  the  theme  of 
much  criticism,  and  afforded  the  subject  of  many  a  piquant 
joke  and  bitter  sarcasm.  All  the  acts  referred  to  have  been 
the  subject  of  earnest  discussion,  as  to  their  justice  and  ex- 
pediency; but  I  am  not  aware  of  any  question  having  been 
raised  respecting  the  constitutionality  of  any  of  them. 

It  is  said  that  these  taxes  were  a  part  of  the  terms  of  in- 
corporation, and  a  matter  of  contract  entered  into  by  the  sev- 
eral companies,  and  the  question  of  constitutionality  thus 
avoided.  But  no  contract  respecting  a  regulation  of  commerce 
can  make  it  constitutional.  Consent  can  give  neither  juris- 
diction nor  constitutionality.  Each  act  must  stand  upon  its 
own  merits,  and  fall  for  the  want  of  them. 


484          NEW  JERSEY  SUPREME  COURT. 

State  v.  Delaware,  Luckawanna,  and  Western  R.  R.  Co. 

If  legislative  construction  of  a  measure  is  of  any  value,  we 
surely  have  it  in  the  acts  referred  to.  They  are  all  based 
upon  the  principle,  that  a  state  may  tax  individuals  or  com- 
panies, who  exercise  privileges  within  the  state,  and  are  pro- 
tected by  its  laws;  and  they  emphatically  declare  that,  by  so 
doing  no  article  of  the  constitution  of  the  United  States  is 
violated.  I  am  satisfied  that  the  act  in  question  in  this  case 
is  not  in  violation  of  any  clause  of  the  constitution  of  the 
United  States  or  of  this  state. 

Whether  it  is  expedient  to  impose  the  tax  contemplated  by 
the  10th  section  of  this  act,  and  by  so  doing  to  follow  the 
precedents  set  by  the  states  of  Maryland,  Pennsylvania,  and 
New  York,  is  a  question  to  be  determined  by  the  maker,  and 
not  by  the  expounder  of  the  law. 

In  my  opinion,  judgment  should  be  rendered  for  the  state 
on  the  case  made. 

VREDENBURGH,  J.,  concurred. 

VAN  DYKE,  J.  By  certain  acts  of  the  legislature  of  this 
state,  the  Paterson  and  Hudson  River  Railroad  Company 
and  the  Paterson  and  RamajK)  Railroad  Company  were  sev- 
erally incorporated,  and  authorized  to  construct  railroads 
between  Jersey  City  and  the  northerly  line  of  this  state,  80 
that  the  whole  together  would  form  a  continuous  road  l>e- 
tween  those  points.  Both  these  roads  have  been  completed, 
and  embrace  a  line  of  road  through  the  state  of  a  little  more 
than  thirty  miles.  These  roads  have,  under  the  assent  and 
sanction  of  our  legislature,  lieen  leased  to  the  Erie  Railway 
Company,  a  corporation  chartered  by  and  liclonging  to  the 
btate  of  New  York,  and  whose  road  extends  from  Piermont, 
on  the  Hudson  river,  to  Dunkirk,  on  (he  southerly  shore  of 
Lake  Erie.  The  company,  by  virtue  of  the  leases  aforesaid, 
and  of  the  Union  railroad,  incorporated  by  the  state  of  New 
York,  are  now  using  the  roads  HO  leased,  in  connection  with 
their  own,  in  transj»orting  passengers,  goods,  wares,  and 


FEBRUARY  TERM,  1864.  485 


State  v.  Delaware,  Lackawanna,  and  Western  R.  R.  Co. 

merchandise,  between  Dunkirk  and  the  city  of  New  York, 
into  and  through  this  state. 

On  the  28th  day  of  March,  1862,  our  legislature  passed 
an  act  concerning  taxes,  the  10th  section  of  which  is  as  fol- 
lows, viz. : 

"That  all  corporations  regularly  doing  business  in  this 
state,  and  not  being  corporations  of  this  state,  shall  be  as- 
sessed and  taxed  for  and  in  respect  of  the  business  so  by 
them  done  and  transacted  in  this  state,  in  manner  following, 
that  is  to  say :  every  such  company  so  doing  business  shall 
pay  a  transit  duty  of  three  cents  on  every  passenger,  and 
two  cents  on  every  ton  of  goods,  wares,  and  merchandise,  or 
other  articles  carried  or  transported  by  or  for  such  company, 
on  any  railroad  or  canal  of  this  state,  for  any  distance  ex- 
ceeding ten  miles,  except  passengers  and  freight  transported 
exclusively  within  this  state." 

It  appears  that  between  the  passage  of  this  act  and  the 
31st  day  of  December  of  the  same  year,  "the  tax  or  transit 
duty  on  the  passengers  and  merchandise  carried  by  the  Erie 
Railway  Company  into  or  through  this  state,  over  the  leased 
roads  aforesaid,  amounts  to  the  sum  of  $18,824.25.  To  re- 
cover this  sum,  the  proceedings  in  this  case  have  been  insti- 
tuted. 

Several  reasons  have  been  offered  to  show  that  this  tax,  or 
these  transit  duties,  should  not,  and  cannot  be  collected  from 
the  Erie  Railway  Company.  I  shall  notice  but  one  of  them. 

It  is  insisted  that  this  act,  and  the  enforcement  of  it,  is  a 
violation  of  the  constitution  of  the  United  States;  for  that  it 
is  an  interference  with,  and  an  attempt  to  regulate  commerce 
among  the  several  states,  and  also  that  it  imposes  a  tax  upon 
imports  into,  and  exports  from  the  state. 

Among  the  many  wise  provisions  of  the  constitution,  is 
that  which  confides  to  the  national  congress,  which  usually 
includes  the  executive,  the  power  to  regulate  commerce  with 
foreign  nations  and  among  the  several  states.  It  is  not  diffi- 

O  O 

cult  to  see  how  much  the  national  government  might  be  em- 
barrassed, and  the  states  themselves  imperiled,  if  each  one 


486  NEW  JERSEY  SUPREME  COURT. 


State  v.  Delaware,  Lackawanna,  and  Western  R.  R  Co. 


were  |>ermitted  to  make  ami  establish  its  own  laws  and  rules 
of  trade  and  commerce  with  all  the  world,  according  to  its 
own  views  of  expediency.  Xor  is  it  difficult  to  perceive  the 
strifes  and  feuds,  and  bitterness  and  possible  collisions,  in 
which  the  states  might  l>e  involved  with  each  other,  if  spite- 
ful, vindictive,  and  retaliatory  laws  were  permitted  to  be 
passed  and  executed  with  regard  to  each  other,  whenever 
passion  or  prejudice  or  self-aggrandizement  should  present  a 
sufficient  motive.  The  framers  of  the  constitution,  there- 
fore, to  protect  the  states  from  these  extreme  perils,  wisely 
interposed  between  them  the  more  discreet  and  delil>erate 
power  of  congress.  It  is  scarcely  supposable,  that  a  majority 
of  that  Ixxly  would  ever  consent  to  give  to  any  one  state,  or 
to  its  citizens  exclusively,  any  material  advantage  over  any  of 
the  rest. 

This  right  to  regulate  commerce  among  the  states,  thus 
confided  to  congress,  must  also,  of  necessity,  be  exclusive,  as 
much  so  as  the  right  to  regulate  it  with  foreign  nations;  for 
the  powers  which  the  states  granted  to  congress,  they  must 
be  considered  as  having  surrendered  to  the  general  govern- 
ment, and  no  longer  to  be  exercised  by  them.  No  reserva- 
tion on  the  part  of  the  states  seems  to  have  accompanied  this 
grant  to  congress ;  and  if  the  states  can  exercise  concurrent 
control  with  the  congress  in  the  matter  before  us,  or  until 
Buch  time  as  congress  shall  interfere  to  prevent  it,  it  is  diffi- 
cult to  see  why  they  may  not  also  do  so  in  all  other  similar 
cases  ;  why  they  may  not  establish  general  laws  of  natural- 
ization and  laws  of  bankruptcy  ;  why  they  may  not  coin 
and  regulate  the  value  of  money,  and  fix  the  standard  of 
weights  and  measures,  establish  post-offices  and  post  roads, 
grant  letters  patent,  declare  war,  and  grant  letters  of  marque 
and  reprisal,  and  the  like.  These  are  powers  granted  to 
congress,  and  but  few  of  them  are  in  terms  prohibited  to  the 
states  ;  and  yet  they  have  always  l>een  considered  as  !>elong- 
ing  exclusively  to  congress,  with  which  the  states  had  no 
right  to  interfere  or  attempt  to  regulate,  whether  congress 
had  at  all  acted  in  the  matter  or  not.  If  the  states  have 


FEBRUARY  TERM,  3861.  487 

State  v.  Delaware,  Lackawanna,  and  Western  E.  E.  Co. 

concurrent  jurisdiction  with  congress  to  pass  laws  on  the  sub- 
ject of  commerce,  then  the  congress  has  no  power  to  annul 
such  laws ;  and  if  congress  has  power  to  annul  them,  it  must 
be  because  the  states  have  no  right  to  pass  them ;  and  if  the 
states  have  no  right  to  pass  them,  the  courts  of  the  states 
should  not  sustain  them.  But  this  question  seems  to  be  very 
well  settled  by  authorities  which  we  are  not  at  liberty  to  re- 
sist, and  I  do  not  understand  it  to  be  denied. 

Is,  then,  this  act  of  our  legislature,  imposing  the  tax  on 
the  passengers  and  property  carried  by  the  Erie  Railway 
Company  into  and  through  our  state,  or  over  more  than  ten 
miles  thereof,  as  before  mentioned,  and  the  effort  to  enforce 
it,  an  attempt  to  regulate  commerce  among  the  several 
states?  It  is  conceded  that  the  passengers  and  merchandise 
carried  into  or  through  our  state,  the  one  way  and  the  other,, 
by  this  New  York  railway  company,  are  from  most,  if  not 
all  the  states  of  the  Union.  Now,  commerce  among  the 
several  states  unquestionably  consists  in  the  carrying  of  per- 
sons or  commodities  from  one  state  into  another,  whether  it 
be  an  adjoining  one  or  not,  for  the  purpose  of  business  or 
pleasure,  or  for  the  sale  or  exchange  of  such  commodities,  or 
for  the  disposition  of  them  in  some  other  way.  This  is  com- 
merce, and  it  is  commerce  among  the  states,  and  it  seems  to 
me  to  be  precisely  what  the  Erie  Railway  Company,  through, 
its  agents,  its  railroads,  its  conveyances,  and  its  motive 
power,  are  doing  for  all  persons  in  the  country  who  see  fit  to 
employ  it.  It  is  thus  aiding,  by  its  great  power,  the  people 
of  the  different  states,  in  carrying  on  their  commerce  and  in- 
tercourse with  each  other,  as  the  constitution  presumes  they 
will  find  it  necessary  or  expedient  to  do ;  and  any  attempt  on 
the  part  of  any  one  of  the  states,  to  obstruct  or  impede  or 
prevent  such  commerce,  unless  it  be  in  some  necessary  po- 
lice regulation,  or  to  prescribe  the  terms  and  conditions  on 
which  such  commerce  shall  enter  its  limits,  cross  its  territory, 
or  leave  its  borders,  is  necessarily  an  attempt  to  regulate,  to 
that  extent  at  least,  commerce  among  the  states ;  a  thing 
which  it  cannot  lawfully  do.  This  act  of  the  legislature  does 
undertake  to  prescribe  and  enforce  the  terms  and  conditions 


488          NEW  JERSEY  SUPREME  COURT. 

State  v.  Delaware,  Lackawanna,  and  Western  R.  R.  Co. 

on  which  this  foreign  railway  company  may  carry  persons 
and  commodities  within,  across,  and  from  our  territories,  not 
by  making  contracts  with  it  for  that  purpose,  but  by  the  im- 
position of  a  tax,  called  a  transit  duty,  upon  every  passenger 
and  every  ton  of  men-hand ise  which  it  brings  into  or  takes 
out  of  the  state,  provided  the  distance  carried  within  the  state 
exceeds  ten  miles. 

It  may  be  admitted,  I  think,  for  the  purposes  of  this  case 
at  least,  that  the  legislature  may  regulate  the  commerce 
which  is  carried  on  exclusively  within  the  limits  of  the  state ; 
for  this  is  not  attempting  to  regulate  or  interfere  with  com- 
merce among  the  several  states.  But  the  act  in  question  does 
the  exact  contrary  of  this.  It  is  careful  not  to  tax  the  pas- 
sengers or  freight  carried  exclusively  within  the  state,  al- 
though they  be  carried  from  one  side  of  it  to  the  other,  but 
it  affects  only  the  passengers  and  freight  that  are  brought 
into  the  state,  and  those  which  are  carried  out  of  it  into 
other  states,  and  every  farthing  of  the  tax  or  transit  duty 
claimed  in  this  suit,  has  arisen  on  passengers  and  merchan- 
dise that  have  been  brought  into  or  carried  out  of  the  state; 
BO  that  the  act  oj>erates  exclusively  upon  the  commerce  among 
the  different  states,  which  is  the  thing  prohibited  by  the  con- 
stitution of  the  Unite*  1  States.  It  is  easy  to  see,  if  this  law 
is  sustained,  how  the  entire  commerce  carried  on  in  and 
through  the  state  by  this  railway  company,  so  far  as  it  re- 
lates to  the  persons  and  property  brought  into  the  state  and 
those  that  are  carried  out,  may  be  wholly  destroyed.  For 
if  t  IK-  courts  sustain  the  law,  the  company  has  no  alternative 
but  to  pay  the  tax  or  to  cease  doing  the  business.  For  as 
there  i.s  no  limit  to  the  extent  to  which  a  tax  may  be  imposed, 
if  the  right  to  assess  it  at  all  IK:  conceded,  it  may  be  increased 
and  extended  to  the  destruction  of  the  object  on  which  it  is 
made  to  operate ;  and  if  the  state  can  lawfully  ini|K>se.  a  tax 
of  three  cents  on  a  passenger,  and  two  cents  on  a  ton  of  mer- 
chandise, why  may  it  not  also  impost:  a  tax  of  ten  cents,  or 
twenty  cent*,  or  more  on  each,  which  would,  of  necessity, 
ruin  and  break  up  the  entire  coinincm;  thus  carried  on;  and 


FEBRUARY  TERM,  1864.  489 


State  v.  Delaware,  Lackawanna  and  Western  K.  R.  Co. 


if  it  can  thus  tax  it  at  will,  why  may  it  not  prohibit  it  alto- 
gether? Can  it  be  that  the  state  has  the  power  to  do  this? 
I  cannot  think  so. 

It  is  doubtless  true  that  the  state  may  refuse  to  permit 
railroads  and  canals  to  be  constructed  for  the  purpose  of 
facilitating  this  kind  of  commerce;  but  this  relates  only  to 
the  particular  modes  of  conveyance,  and  does  not  affect  the 
right  of  the  people  to  carry  on  the  commerce  itself  by  other 
modes  of  conveyance.  But  if  the  state  had  the  right  to 
prohibit  these  particular  modes  of  conveyance,  it  is  now  too 
late  to  exercise  that  right.  It  has  already  granted  the  priv- 
ilege, and  the  roads  have  been  made  and  are  in  use.  It  has 
already  consented  to  the  leasing  of  these  roads  to  the  Erie 
Railway  Company,  and  the  leases  have  been  executed  and  de- 
livered. These  New  Jersey  roads  have  already  paid  all  the 
tax  imposed  upon  them  by  their  charters;  and  now,  after 
having  assented  to  all  these  arrangements,  with  a  view  to 
this  very  commerce  among  the  states,  the  state  undertakes 
to  tax  that  commerce  by  the  assessments  under  considera- 
tion. 

It  is  insisted,  however,  that  this  is  not  a  taxing  of  com- 
merce among  the  several  states,  but  a  taxing  of  the  business 
of  the  company.  It  is  true  that  this  is  a  taxing  of  the  busi- 
ness of  the  company ;  but  then  the  business  of  the  company 
is  the  carrying  on  of  commerce  among  the  states,  quite  as 
much  so  as  if  the  same  thing  was  done  by  vessels  navigating 
the  waters  of  the  country ;  so  that  whether  we  call  it  the 
one  thing  or  the  other,  it  brings  us  to  the  same  conclusion. 
It  is  a  tax  and  restraint  upon  the  commerce  among  the 
states.  The  calling  of  things  by  different  names  cannot 
change  the  great  thing  itself. 

It  is  doubtless  true  that  the  business  of  this  railway  com- 
pany carried  on  in  the  state,  as  well  as  all  its  property  per- 
manently within  its  limits,  may  be  taxed.  But  then  the 
business  thus  taxed  must  be,  I  think,  that  which  is  confined 
exclusively  to  the  state,  and  not  that  which  is  necessarily 
connected  with  business  outside  the  state,  such  as  the  carry- 


490          NEW  JERSEY  SUPREME  COURT. 


State  v.  Delaware,  Lackawanna  and  Western  R  R.  Co. 


itig  of  merchandise,  <fcc.,  from  oue  to  the  other  for  sate  or 
exchange.  This  is  commerce  among  the  states,  and,  as  we 
have  before  seen,  our  act  expressly  excludes  from  its  opera- 
tion business  of  this  company  which  relates  exclusively  to 
this  state,  and  confines  it  exclusively  to  those  passengers  and 
that  merchandise  which  enter  from  or  go  into  other  states : 
and  this  is  what  gives  to  the  act  its  objectionable  and  uncon- 
stitutional feature. 

There  are  some  things  which  states  may  do,  although  they 
may,  to  some  extent,  affect  commerce.  They  may  pass  laws 
for  their  own  preservation.  They  may  prevent  the  intro- 
duction of  dangerous  diseases,  of  crimes  and  criminals,  and 
the  various  species  o/  demoralization  and  pollution.  Such 
acts  are  held  to  be  not  acts  for  the  regulation  of  commerce, 
within  the  meaning  of  the  constitution  ;  but  they  are  laws  for 
the  preservation  and  protection  of  the  people,  in  their  inter- 
nal affairs,  from  the  evils  which  might  otherwise  be  cast  upon 
them,  and  are  therefore  termed  internal  police  laws,  and  are 
such  rights  and  powers  as  the  states  are  held  never  to  have 
surrendered. 

So,  too,  the  states  may  impose  such  burthens  and  restraints 
upon  the  traffic,  on  the  part  of  its  citizens,  in  articles  that 
were  once  imports,  after  they  have  lost  that  character,  and 
become  broken  up  and  mingled  with  the  other  private  prop- 
erty in  the  state,  as  would  discourage  the  importation  of  such 
articles,  by  which  the  nation  would  lose  some  revenue.  But 
this  is  held  to  relate  only  to  their  own  internal  affairs,  after 
they  have  become  such,  and  not  to  commerce  with  foreign 
nations  nor  among  the  several  states. 

If  the  question  before  us  were  a  new  one,  I  should  feel 
constrained,  by  the  very  clear  and  express  language  of  the 
constitution  itself,  as  well  as  by  the  urgent  necessity  which 
canned  the  provision  to  be  inserted,  to  hold  our  act  to  be  re- 
pugnant to  that  great  instrument.  It  is  well  known  that 
the  general  government,  under  the  old  confederacy,  had  no 
]K>wer  over  commerce,  but  each  state  acted  in  relation  to  it 
in  a  way  most  satisfactory  to  itself;  and  the  consequences  of 


FEBRUARY  TERM,  1864.  491 

State  v.  Delaware,  Lackawanna,  and  Western  B.  R.  Co. 

such  action  became  so  alarming  to  the  country,  that  they  be- 
came one  of  the  most  leading  motives  for  the  assembling  of 
a  convention  to  frame  a  new  constitution.  The  new  consti- 
tution, it  was  supposed,  remedied  the  evils  in  the  old  articles 
of  confederation.  Such  has  been  the  view  which  the  Su- 
preme Court  of  the  United  States  has  constantly  taken  of 
the  subject ;  and  it  has  so  repeatedly,  as  I  understand  it,  de- 
cided the  point  under  consideration,  in  the  varied  forms  in 
which  it  has  been  there  presented,  that  if  I  doubted  the  cor- 
rectness of  their  decisions,  I  should  still  feel  myself  bound  by 
them. 

There  are  a  number  of  decisions  in  the  state  courts,  in  which 
those  tribunals  have  held  differently  from  the  Supreme  Court 
of  the  United  States,  but  I  do  not  stop  to  cite  them  here ;  not 
because  they  are  not  entitled  to  great  respect  in  themselves, 
but  because  I  do  not  consider  them  as  authority  in  such  cases. 
In  point  of  fact,  all  the  cases  that  have  ever  reached  the 
Supreme  Court,  on  appeal  from  the  state  tribunals,  have  been 
cases  where  those  courts  have  sustained  the  state  laws ;  but 
the  higher  court  reversed  or  affirmed  them  as  in  its  judgment 
it  thought  right.  It  has  the  power  to  reverse  them.  It  is 
the  court  of  last  resort  in  all  such  cases,  and  to  its  decisions 
we  are  bound  to  conform  and  submit,  as  much  so  as  our  local 
courts  are  bound  to  conform  to  the  decisions  of  our  own 
supreme  tribunal. 

The  Supreme  Court  of  the  United  States,  having  fre- 
quently had  this  question  in  some  form  before  it,  has  uni- 
formly, as  I  understand  it,  decided  it  in  the  same  way.  In 
1819,  or  thereabouts,  the  state  of  Maryland  passed  an  act  to 
tax  the  branch  of  the  United  States  Bank  located  in  that 
state.  The  bank  was  chartered  by  an  act  of  congress,  in 
carrying  out  one  of  its  constitutional  functions.  The  court 
held  that  the  act  of  congress,  under  the  provision  of  the 
constitution  gn  the  subject,  was  supreme;  and  that  Avhere 
that  power  was  supreme,  any  act  of  a  state  legislature  that 
attempted  to  interfere  with  that  power,  or  to  burthen  or  re- 
strain or  impede  it,  was  contrary  to  the  constitution,  and 


492          NEW  JERSEY  SUPREME  COURT. 

State  v.  Delaware,  Lackawanna,  and  Western  R.  R.  Co. 

therefore  void.  The  decision  of  the  state  court  sustaining 
that  act  was  reversed.  McCul/och  v.  The  State  of  Maryland, 
4  Wheat.  316. 

A  case,  which  attracted  much  more  public  attention,  and 
was  most  elaborately  argued  and  carefully  considered,  was  the 
case  of  Gibbons  v.  Ogden,  decided  in  1819.  The  legislature 
of  the  state  of  New  York  had  granted  to  certain  persons  the 
exclusive  right,  for  a  period  of  years,  to  navigate  vessels 
propelled  by  fire,  or  steam,  within  or  upon  all  the  waters  of 
that  state,  including  its  rivers,  lakes,  and  bays.  A  portion 
of  these  exclusive  rights  and  privileges  had  been  transferred 
to  Ogden,  and  were  owned  by  him.  Gibbons  was  the  owner 
of  two  vessels,  propelled  by  fire  and  steam,  which  were  duly 
licensed,  enrolled,  &c.,  for  the  coasting  trade.  With  these 
vessels  he  attempted  to  navigate  the  waters  of  New  York, 
and  to  carry  in  them  passengers,  &c.,  from  Elizabethtown,  in 
this  state,  to  places  in  the  state  of  New  York,  and  also  from 
places  in  that  state  to  Elizabethtown,  in  this  state.  From 
doing  this  he  was  restrained  by  an  injunction  from  the  Court 
of  Chancery  of  the  state  of  New  York,  pursuant  to  the  pro- 
visions of  the  statute  of  that  state.  This  proceeding  was 
sustained  by  its  highest  legal  tribunal,  from  which  an  appeal 
was  taken  to  the  Supreme  Court  of  the  United  States.  That 
court  held  the  act  of  New  York  to  be  one  which  attempted 
to  regulate  commerce,  which  included  navigation  among  the 
several  states,  and  was  therefore  void.  The  court  held  that 
the  right  to  regulate  commerce  among  the  states,  extends  to 
every  species  of  commerce  and  intercourse  between  the  states, 
to  men  as  well  as  to  things;  that  it  does  not  stop  at  the 
boundaries  of  states,  but  penetrates  their  interiors ;  that  the 
powers  vested  in  congress  are  complete  in  themselves,  limited 
only  by  the  constitution  itwelf,  and  is  not  a  concurrent  power 
which  a  state  may  exercise.  9  Wheat.  1. 

In  1827,  the  case  of  Broicn  v.  The  State  of  Maryland 
came  before  the  court.  The  legislature  of  that  state  had 
enacted,  "  that  all  importers  of  foreign  articles  or  commodi- 
ties, of  dry  goods,  wares,  or  merchandise,  by  bale  or  pack- 


FEBRUARY  TERM,  1864.  493 

State  v.  Delaware,  Lackawanna  and  Western  R.  B.  Co. 

age,  or  of  wine,  rum,  brandy,  whiskey,  and  other  distilled 
spirituous  liquors,  &c.,  and  all  persons  selling  the  same  by 
wholesale,  bale,  or  package,  hogshead,  barrel,  or  tierce,  shall, 
before  they  are  authorized  to  sell,  take  out  a  license  from 
the  state  authorities,  for  which  they  should  pay  $50,  subject 
to  a  penalty,  &c.  The  defendant  below  was  charged  with 
having  imported  and  sold  one  package  of  foreign  dry  goods, 
without  having  a  license  so  to  do.  Judgment  was  given 
against  the  defendant  in  the  state  tribunals,  and  the  case 
was  removed  into  the  Supreme  Court.  That  court  held  this 
act  of  the  legislature  of  Maryland  to  be  void,  not  only  be- 
cause it  was  contrary  to  the  provision  of  the  constitution  of 
the  United  States  which  prohibits  the  states  from  laying  im- 
posts or  duties  on  imports  or  exports,  but  also  because  it  was 
contrary  and  repugnant  to  the  provision,  which  gives  to  the 
congress  the  power  to  regulate  commerce  with  foreign  nations 
and  among  the  several  states.  The  court  strongly  asserting, 
that  the  congressional  privilege  of  importing  foreign  goods 
&c.,  into  a  state,  upon  the  payment  of  duties,  or  free  from 
the  payment  of  such  duties,  carried  with  it  the  right  to  sell 
such  imports  within  a  state,  so  long  as  they  retained  their 
character  of  imports,  and  remained  in  their  original  packages 
unbroken,  and  prior  to  their  becoming  mingled  with  the 
other  private  property  of  the  citizens  of  the  state,  free  from 
any  impediments,  in  the  shape  of  tax,  license,  or  otherwise, 
imposed  by  state  authority;  reaffirming  the  doctrines  an- 
nounced in  the  case  of  Gibbons  v.  Ogden,  and  assuming  that 
the  same  principles  which  applied  to  foreign  importations 
applied  equally  to  importations  from  sister  states.  12  Wheat. 
419. 

In  1847,  came  up  what  were  termed  the  license  cases. 
The  states  of  New  Hampshire,  Massachusetts,  and  Rhode 
Island  had  each  passed  a  law  prohibiting  the  sale  of  spirit- 
uous liquors  within  their  respective  limits,  without  a  license 
for  that  purpose  first  obtained  from  the  state  authorities. 
The  violators  of  these  acts,  being  prosecuted,  set  up,  as  a 
defence,  in  two  of  the  cases,  that  the  liquors  in  question  had 

VOL.  i.  2  H 


494         NEW  JERSEY  SUPREME  COURT. 

State  v.  Delaware,  Lackawanna  and  Western  R.  R.  Co. 

been  imported  from  abroad,  and  in  the  other  case,  that  a 
barrel  of  American  gin,  the  one  in  question,  had  been  pur- 
chased in  Boston,  and  carried  coastwise  thence  to  New  Hamp- 
shire, and  there  sold  in  the  same  barrel.  The  eases  were  all 
argued  and  decided  together.  The  court  reaffirmed  the  doc- 
trine announced  in  the  case  of  Brown  v.  The  State  of  Hary- 
Uind;  but  the  court  held,  several  of  the  judges  delivering 
separate  opinions,  that  in  all  the  cases  the  j>oint  of  importation 
into  the  states  had  been  passed  without  obstruction  or  impedi- 
ment. No  question  was  made  by  the  state  laws  about  bring- 
ing the  liquors  into  the  states:  they  were  then  there,  and  had 
become  the  property  of  the  citizens  of  the  states  the  same  as 
their  other  property,  and  as  such,  the  traffic  in  them  was 
subject  to  the  control  of  the  state  authorities,  and  might  be 
taxed  or  restrained  by  them,  the  same  as  any  other  business 
or  traffic. 

The  court  also  held,  that  these  acts  were  clearly  matters 
of  internal  police  regulation  ;  that  the  right  of  the  state  to 
guard  and  protect  themselves  against  internal  violence,  dis- 
ease, and  demoralization  was  one  which  they  had  never  sur- 
rendered, which  were  in  their  natures  paramount  to  the 
right  of  congress  to  regulate  commerce ;  and  that  such  laws 
did  not  necessarily  come  in  conflict  with  the  exclusive  power 
of  congress  to  do  so.  These  projwsitions  are  unquestionably 
correct,  and  if  they  were  not  so,  they  need  not  be  controverted 
here.  They  do  not  reach  the  case  before  us.  The  act  of 
our  legislature  is  not  one  for  the  protection  of  our  health,  or 
]>eace,  or  morals,  nor  hits  it  any  of  the  features  of  a  police 
regulation,  but  is  purely  one  for  the  raising  of  revenue;  nor  is 
it  one  which  relates  to  the  |>ersons  and  property  in  the  state, 
after  all  questions  as  to  the  mode,  and  manner,  and  terms, 
in  and  UJKUI  which  they  came  into  the  state,  has  been  law- 
fully settled  and  disjKwed  of;  but  it  is  confined  exclusively  to 
those  transactions  which  relate  to  the  terms  and  conditions 
on  which  jxireons  and  property  are  brought  into  the  state, 
or  are  carried  out  of  it.  The  railway  company,  call  it  what 
we  may,  are  prohibited  from  either  bringing  them  in  or 


FEBRUARY  TERM,  1864.  495 

State  v.  Delaware,  Lackawanna,  and  Western  R.  K.  Co. 

carrying  them  out  of  the  state,  except  on  the  condition  of 
paying  this  tax  for  the  privilege  of  doing  so.  If  in  these 
license  cases  the  states  had  prohibited  the  introduction  of  these 
liquors  into  the  states,  or  the  carrying  them  out,  except  upon 
a  purchased  license  so  to  do,  they  would  have  been  analogous 
to  the  one  under  consideration.  Judge  McLean,  in  his  opinion 
on  this  distinction,  remarks,  that  "if  this  tax  had  been  laid 
on  the  property  as  an  import  into  the  state,  the  law  would 
have  been  repugnant  to  the  constitution.  It  would  have  been 
a  regulation  of  commerce  among  the  states,  which  has  been 
given  exclusively  to  congress."  5  How.  504,  License  Cases. 

In  1849,  the  passenger  cases  came  before  the  Supreme 
Court.  The  state  of  New  York  had  passed  an  act  imposing 
a  certain  tax  on  every  passenger  that  should  arrive  in  the  port 
of  New  York,  either  from  foreign  ports  or  in  coasting  ves- 
sels, which  tax  was  to  be  collected  from  the  masters  of  the 
vessels,  who  were  in  turn  authorized  to  collect  it  from  the 
passengers,  and  the  moneys  thus  collected  were  to  be  termed 
"  hospital  moneys ;"  and  after  the  requisite  sums  had  been 
expended  for  that  purpose,  the  surplus,  if  any,  was  to  be  paid 
to  the  treasurer  of  the  Society  for  the  Reformation  of  Juvenile 
Delinquents  in  the  city  of  New  York.  In  1841,  the  ship 
Henry  Bliss  arrived  in  the  port  of  New  York,  and  landed 
two  hundred  and  ninety  steerage  passengers.  The  master  was 
sued  for  the  tax  imposed  on  these  passengers  by  this  act  of 
New  York,  and  the  claim  was  resisted  on  the  ground,  that  the 
act  under  which  the  effort  to  collect  the  tax  was  made  was 
contrary  to  the  constitution  of  the  United  States.  The  case 
was  elaborately  discussed,  and  although  the  court  was  not 
unanimous,  it  adhered  to  its  former  decisions,  and  held  that 
the  act  of  New  York  was  one  regulating,  or  attempting  to 
regulate  commerce,  and  was  therefore  void,  although  it  was 
earnestly  insisted  that  it  was  but  a  police  regulation.  7  How. 
283,  Passenger  Cases. 

In  1851,  the  Wheeling  bridge  case  came  before  the  Supreme 
Court.  This  bridge  was  erected  wholly  within  the  limits  of 
the  state  of  Virginia,  and  specifically  authorized  by  an  act 


496         NEW  JERSEY  SUPREME  COURT. 


State  v.  Dataware,  Lackawanna,  and  Western  R.  R.  Co. 


of  the  legislature  of  that  state ;  but  in  its  construction,  it  was 
made  so  low  that  steamboats,  with  the  tall  chimneys  com- 
monly used  on  the  western  waters,  could  not  pass  under  it. 
The  state  of  Pennsylvania,  finding  her  commerce  with  the 
west  and  southwest  greatly  obstructed  and  hindered  thereby, 
applied  to  the  equity  side  of  the  Supreme  Court  of  the 
United  States  to  compel  its  removal  or  modification,  so  that 
commerce  would  not  be  obstructed  or  imj>eded  thereby ; 
taking  the  ground,  that  the  Ohio  river,  though  belonging  to 
Virginia,  was  a  highway  of  commerce,  and  that  no  act  of 
the  legislature  of  Virginia  could  authorize  or  justify  the 
erection  of  a  bridge  over  such  a  river  that  would  interfere 
with  the  commerce  of  the  river.  The  court  entertained  the 
application,  declared  the  bridge  to  be  an  ol>strnction  and  a 
nuisance,  and  ordered  it  to  be  removed,  or  so  elevated  that 
it  should  cease  to  be  an  obstruction  to  commerce.  The  latter 
of  which  alternatives  has  been  adopted.  13  How.  518. 

In  1859,  the  legislature  of  the  state  of  Alabama  passed  an 
act  requiring  the  owners  of  steamboats  navigating  the  waters 
of  that  state;  before  such  boats  should  leave  the  port  of  Mo- 
bile, to  file  a  statement  in  writing,  in  the  office  of  the  probate 
judge  of  Mobile  county,  setting  forth — first,  the  name  of  the 
vessel;  second,  the  name  of  the  owner  or  owners  thereof; 
third,  his  or  their  place  or  places  of  residence;  and  fourth, 
the  interest  each  has  in  the  vessel ;  and  on  omitting  to  do  so, 
they  should  l>e  subject  to  a  fine,  &c.  This  act  was  resisted, 
as  being  contrary  to  the  power  conferred  on  congress  to  regu- 
late commerce  among  the  several  states  and  the  act  of  congress 
regulating  the  coasting  trade.  The  Supreme  Court  of  the 
United  States  held  this  act  of  the  legislature  of  Alabama  to 
be  unconstitutional  and  void  for  these  reasons.  Sinnot  and 
others  v.  Davenport  and  others,  22  How.  227. 

The  cases  that  are  supposed  to  take  a  different  view  of 
the  subject  are — first,  that  of  Wilton  and  others  v.  The 
HUtckbird  Creek  Marsh  Company,  which  was  decided  as  early 
as  1829.  The  legislature  of  Delaware,  by  an  act  which  it 
panned,  authorized  this  creek  company  to  build  a  dam  across 


FEBRUARY  TERM,  1864.  497 

State  v.  Delaware,  Lackawanna  and  Western  K.  R.  Co. 

one  of  the  small  creeks  of  that  state,  into  which  the  tide 
flowed  for  some  distance  from  the  Delaware  river  through 
the  marsh,  and  also  to  raise  embankments  on  the  shores. 
The  defendants  below  were  (he  owners  of  a  sloop  of  less  than 
one  hundred  tons  burthen,  regularly  licensed  and  enrolled, 
claiming  the  right  to  navigate  the  creek  as  a  highway  of 
commerce,  broke  and  injured  the  dam,  for  which  injury  the 
suit  was  brought;  and  the  question  was,  whether  this  act  of 
the  legislature  of  Delaware,  authorizing  the  dam,  was  re- 
pugnant to  the  constitution  of  the  United  States,  on  the 
ground  of  its  interfering  with  commerce  among  the  states. 
The  defendants  below  were  citizens  of  the  state  of  Delaware. 
The  court  said  the  value  of  property  on  the  banks  of  the 
creek,  must  be  reclaimed  by  excluding  the  water  from  the 
marsh,  and  the  health  of  the  inhabitants  probably  improved. 
Measures  calculated  to  produce  these  objects,  provided  they 
do  not  come  in  collision  with  the  powers  of  the  general 
:  government,  are  undoubtedly  within  those  that  are  reserved 
to  the  states.  But  the  measure  authorized  by  this  act  stops 
a  navigable  creek,  and  must  be  supposed  to  abridge  the 
rights  of  those  who  have  been  accustomed  to  use  it.  But 
this  abridgment,  unless  it  comes  in  conflict  with  the  constitu- 
tion of  the  United  States,  is  an  affair  between  the  govern- 
ment of  Delaware  and  its  citizens,  of  which  this  court  can 
take  no  cognizance.  The  court  adds,  if  congress  had  passed 
any  act  which  bore  upon  the  case,  any  act  in  execution  of 
the  power  to  regulate  commerce,  which  was  to  control  state 
legislation  over  those  small  navigable  creeks,  we  should  feel 
not  much  difficulty  in  saying,  that  a  state  law  coming  in 
conflict  with  such  act  would  be  void.  But  congress  has 
passed  no  such  act.  We  do  not  think  that  the  act  empower- 
ing the  Blackbird  Creek  Marsh  Company  to  place  a  dam 
across  the  creek  can,  under  all  the  circumstances  of  the  case, 
be  considered  as  repugnant  to  the  power  to  regulate  com- 
merce in  its  dormant  state,  or  as  being  in  conflict  with  any 
law  passed  on  the  subject. 

It  must  be  conceded,  I   think,  that  the  language  of  the 


498  NEW  JERSEY  SUPREME  COURT. 


State  v.  Delaware,  Lacka wanna  and  Western  R.  R  Co. 


court  in  this  case,  which  is  quite  brief,  is  not  very  clear  as  to- 
what  general  propositions  it  intended  to  annunciate,  except  to 
sustain  the  net  of  Delaware  in  that  particular  case;  but  it 
seems  to  assume  that  the  state  authorities  in  that  section  have 
a  kind  of  concurrent  jurisdiction  with  the  general  government, 
and  that  until  congress  sees  fit  to  act  in  the  matter,  the  states 
may  do  so,  even  to  the  damming  up  of  a  navigable  river.  If 
this  be  the  idea,  then  it  is  certainly  in  conflict  with  all  the 
cases  decided  on  that  subject,  either  before  that  time  or  since. 
2  Peters  245. 

The  only  other  case,  which  it  is  supj>osed  sustains  the  act 
of  our  legislature,  is  that  of  The  City  of  New  York  v.  Milncr 
11  Peters  102,  decided  in  1837.  An  act  of  the  legislature  of 
the  state  of  New  York  provided,  that  the  master  of  every 
ship  or  vessel,  arriving  in  the  port  of  New  York  from  any 
country  out  of  the  United  States,  or  from  any  other  state  of 
the  United  States,  shall,  within  twenty-four  hours  after  his 
arrival,  make  a  report  in  writing,  to  the  mayor  of  the  city, 
of  the  name,  place  of  birth,  and  last  legal  settlement,  age, 
and  occupation  of  every  |>erson  brought  as  a  passenger  in 
the  ship  or  vessel,  or  on  lx>ard  of  her  on  her  last  voyage,  &c., 
under  a  penalty  of  $75  on  each  passenger.  The  city  of  New 
York  sued  the  master  of  a  vessel,  who  had  landed  such  pas- 
sengers, for  not  making  the  re|>ort  required.  The  Supreme 
Court  held  that  this  act  of  the  legislature  of  New  York  did 
not  attempt  in  any  way  to  regulate  commerce,  but  w:is  one 
which  acted  on  the  master  and  passengers  after  they  were 
landed  and  had  liecomc  inhabitants  of  that  state;  and  was 
therefore  a  police  regulation,  which  the  state  had  a  right  to 
adopt,  and  was  not  in  conflict  with  the  constitution  or  laws 
of  the  Unit<-d  States.  This  decision  is,  I  think,  in  jK-rfcrt 
harmony  with  all  that  have  be»-n  cited,  or  that  have  In-eiv 
rendered  by  that  supreme  tribunal,  unless  it  may  be,  )>cr- 
hajis,  the  cane  of  Wilson  and  utlirrn  v.  The  llluckhird  Creek 
Company ;  and  that  case,  HO  far  as  it  seems  to  hold  that  a 
state  may  go  so  fur  as  to  dam  up  a  navigable  river,  and 
abolish  thereby  all  navigation  thereon  and  all  commerce 


FEBRUARY  TERM,  1864.  499 

State  v.  Delaware,  Lackawanna,  and  Western  R.  R.  Co. 

thereon,  provided  congress  has  not  legislated  on  the  subject  to 
the  contrary,  would  not,  I  apprehend,  at  this  day  be  sustained 
by  any  one. 

The  case  of  Almy  v.  The  State  of  California  came  before 
the  court  as  late  as  1860.  The  legislature  of  that  state  passed 
an  act  to  raise  revenue  for  the  support  of  the  government 
thereof,  and  among  other  things,  they  enacted  that  all  bills  of 
lading  for  the  transportation  of  gold  or  silver,  in  coin,  bars, 
or  dust,  from  any  point  or  place  in  that  state  to  any  other 
point  or  place  without  the  state,  should  have  upon  it  a  certain 
stamp,  known  there  as  a  tax  stamp,  expressing  in  value  the 
amount  of  such  tax  or  duty. 

To  use  such  bill  of  lading  without  such  stamp  was,  by  the 
act,  made  a  misdemeanor,  and  punished  by  fine.  Almy,  the 
defendant  below,  being  the  master  of  the  ship  Rattler,  then 
lying  at  San  Francisco,  and  bound  for  New  York,  received  a 
quantity  of  gold  dust,  for  which  he  gave  a  bill  of  lading  with- 
out having  any  stamp  attached  to  it.  For  this  disobedience  to 
the  law  of  California,  he  was  indicted,  convicted,  and  fined 
$100. 

The  application  for  the  reversal  of  this  decison  was  pnt 
upon  the  ground  of  the  unconstitutionality  of  this  law  of  Cali- 
fornia, both  because  it  attempted  to  tax  the  commerce  among 
the  states,  and  also  because  it  was  a  tax  upon  exports.  The 
Chief  Justice,  in  delivering  the  opinion  of  the  court,  put  it  on 
the  latter  ground  only,  not  discussing  the  other  one  at  all. 
He  says :  if  this  tax  was  laid  on  gold  or  silver  exported,  every 
one  would  see  that  it  was  repugnant  to  the  constitution  of  the 
United  States.  But  a  tax  or  duty  on  a  bill  of  lading,  although 
differing  in  form  from  a  duty  on  the  article  shipped,  is  in 
substance  the  same  thing.  He  says  the  intention  to  tax  the 
export  of  gold  and  silver  in  the  form  of  a  tax  on  the  bill  of 
lading  is  too  plain  to  be  mistaken.  The  act  was  pronounced 
unconstitutional  of  course. 

In  that  case  it  will  be  seen  that  the  Supreme  Court 
brushed  away,  without  ceremony,  a  most  ingenious  fiction, 
by  which  the  constitutional  prohibition  was  to  be  evaded  by 


500         NEW  JERSEY  SUPREME  COURT. 


State  v.  Delaware,  Lackawanna,  and  Western  E.  R.  Co. 

the  use  of  other  terms  and  other  means,  and  reached  at  once 
the  real  thing  itself.  If  the  court  would  do  this  when  some 
question  was  supposed  to  exist  as  to  the  legality  of  the  act, 
in  consequence  of  this  attempt  at  evasion,  we  may  be  assured 
that  it  would  have  annulled  without  hesitation  an  act  that 
had  taxed  the  export  itself.  The  Chief  Justice  remarked, 
that  that  case  could  not  be  distinguished  from  that  of  Brown 
v,  The  State  of  Maryland,  already  referred  to.  That  was 
an  indirect  tax  upon  an  import.  The  California  case  was  an 
indirect  tax  upon  an  exj>ort ;  both  stand  on  the  same  footing, 
and  the  acts  sustaining  both  were  alike  condemned  as  being 
unconstitutional.  Now,  in  what  do  those  cases  differ  from 
the  one  before  us?  What  does  our  act  in  this  respect  do 
but  to  imjjost.1  a  tax  on  imports  and  exports  both  ?  Commodi- 
ties brought  into  the  state  are  imports,  those  taken  out  are 
ex|*>rte.  Is  not  this  the  very  business  in  which  the  railway 
coiiijKiny  is  engaged,  bringing  imports  into,  and  carrying 
exports  out  of  the  state?  and  what  can  the  imposition  of  a 
tax  or  duties  on  both  of  these  be  but  a  tax  upon  imports  and 
exjx>rt*?  Not,  it  is  true,  by  taxing  the  commcxlities  them- 
selves directly,  but  by  levying  the  tax  upon  the  persons  who 
carry  them.  This  was  the  California  case  precisely.  They 
did  not  attempt  to  tax  the  commodities  themselves,  but  they 
attempted  to  tax,  in  an  indirect  form,  the  master  of  the  ship 
who  carried  them.  I  do  not  propose  further  to  discuss  this 
feature  of  the  case.  It  appears  to  me  that  no  words  that  I 
can  use  can  make  it  plainer. 

I  will  simply  add  here,  that  the  California  case  is  a  very 
conclusive  one  on  the  other  point  which  I  have  considered. 
If  that  act  authorized  a  tax  u|>on  an  export,  it  unquestionably 
authorized  an  interference  with  commerce  among  the  states; 
for  a  taxing  of  imports  or  exports  is  most  certainly  an  attempt 
to  regulate  commerce:  and  if  our  act  is  an  attempt  to  tax  im- 
ports or  exports,  it  is  undoubtedly  an  act  to  regulate,  to  that 
extent,  commeroe  among  the  states. 

Nor  am  I  able  to  see  anything  in  conflict  with  the  views 
I  have  expressed,  in  the  fact  that  certain  of  the  states,  our 


FEBRUARY  TERM,  1864.  501 


State  v.  Delaware,  Lackawanna  and  Western  R.  R.  Co. 


own  among  the  number,  have,  in  the  granting  of  chartered 
rights  to  canal  and  railroads  companies,  imposed  upon  them, 
as  a  part  of  the  terms  of  the  grant,  the  payment  to  the  state 
of  certain  transit  duties  on  the  passengers  and  merchandise 
which  they  transport  over  their  works ;  for,  in  the  first  place, 
these  tilings  are  all  confined  to  the  limits  of  the  states  them- 
selves. It  is  not  contrary  to  the  constitution  of  the  United 
States  to  tax  either  the  property  or  business  of  persons  or 
corporations  carried  on  exclusively  within  the  state.  The 
transit  duties  paid  by  the  Camden  and  Amboy  Railroad 
Company  are  not  paid  on  passengers  or  merchandise  on  the 
ground  that  they  come  from  other  states,  but  it  is  exclusively 
on  those  who  are  carried  within  the  state.  Neither  the 
chartered  companies  nor  their  rights  extend  beyond  the 
limits  of  the  state,  nor  is  any  difference  made,  nor  is  any 
.notice  taken,  so  far  as  the  duties  are  concerned,  whether  the 
passengers  and  freight  belong  in  the  state  or  not.  The  charge 
is  made  on  the  assumption  that  all  belong  to  the  state,  and 
nothing  in  addition  is  added  in  consequence  of  their  coming 
.from  a  foreign  state. 

The  Camden  and  Amboy  railroad  does  not  extend  from 
Philadelphia  to  New  York,  but  from  Camden  to  Amboy, 
wholly  within  the  state;  and  the  legislature  had  the  right  to 
impose  on  them  the  terms  which  they  did,  and  the  company 
had  the  right  to  accept  them,  and  pay  the  duties,  if  they 
thought  proper  to  do  so.  This  being  a  transaction  entirely 
within  the  state,  it  is  in  no  way  an  attempt  to  regulate  or  to 
interfere  with  commerce  among  the  states.  The  state,  then, 
has  the  right  to  tax  the  business  of  anybody,  carried  on  ex- 
clusively within  the  state,  unless  it  may  be  the  business  of 
corporations  or  others  who  may  have  some  special  exemp- 
tion from  such  taxation. 

I  do  not  know  that  any  state  has  proceeded  further  by  its 
legislation  in  this  respect  than  our  own  previous  to  the  act 
complained  of;  but  if  any  of  them  have  proceeded  so  far  as 
-to  tax  foreign  persons  or  foreign  merchandise  for  the  privi- 


502         NEW  JERSEY  SUPREME  COURT. 


State  v.  Delaware,  Lackawanna  and  Western  R.  R.  Co. 


lege  of  coining  into  the  state,  I  do  not  hesitate  to  pronounce 
such  taxation  unlawful. 

It  is  not  unconstitutional  for  the  owner  of  a  ship,  who 
carries  the  commodities  of  another  across  the  Atlantic  ocean, 
to  charge  him  for  the  transportation  of  such  commodities 
from  New  York  to  Europe.  This  is  not  a  tax  upon  exports, 
nor  is  it  a  regulation  of  commerce,  nor  is  it  repugnant  to 
the  constitution,  for  this  state,  or  any  of  its  corporations,  to 
charge  persons,  whether  they  be  foreigners  or  not,  for  the  pri- 
vilege of  being  carried  over  their  roads  in  an  easy,  convenient, 
and  ex|>editious  manner,  which  the  state  or  company  has 
been  at  great  expense  in  providing.  The  traveller  is  not 
bound  to  adopt  that  mode  of  travel.  He  may  go  on  foot,  or 
he  may  go  with  his  commodities  in  his  own  conveyance,  but 
if  he  accept  the  terms  of  the  company,  and  go  with  them,  it 
becomes  a  matter  of  contract,  and  it  is  lawful  for  the  com- 
pany to  accept  the  compensation.  But  does  it  follow  that 
the  state  of  Pennsylvania  can  prevent  me  from  going  into- 
Philadelphia  with  my  wagon  load  of  commodities  for  sale, 
and  then  the  state  of  New  Jersey  prevent  me  from  return- 
ing into  the  state  with  my  box  of  dry  goods,  or  my  barrel  of 
sugar,  or  my  load  of  guano,  unless  I  pay  a  tax  on  myself 
and  commodities,  on  each  side,  for  the  privilege  of  so  doing? 
No  one,  I  think,  will  contend  for  this.  It  is  the  very  tiling 
which  the  national  constitution  intended  to  prevent;  and  if 
the  tax  cannot  be  assessed  directly  on  me  and  on  my  mer- 
chandise, what  better  pretence  can  there  be  for  assessing 
the  same  thing  against  the  person  who  owns  the  railroad,  or 
the  ferry  boat,  or  the  wagon  and  horses,  which  I  employed 
to  carry  me  and  my  goods  the  one  way  and  the  other. 

Another  answer  to  the  idea,  that  precedent  for  imposing 
transit  duties  on  corporations  is  to  be  found  in  different 
states  is,  that  these  things  are  all  matters  of  contract,  volun- 
tarily entered  into  l>etwcen  the  states  on  the  one  side,  and 
the  companies  on  the  other.  The  comjmnies  offer  to  pay  the 
state  for  the  privileges  granted,  and  this  is  done  generally 
by  the  payment  of  a  definite  sum  of  money,  or  by  contribu- 


FEBRUARY  TERM,  1864.  503 

State  v.  Delaware,  Lackawanna,  and  Western  R.  R.  Co. 

ting  a  specific  portion  of  their  earnings,  or  in  some  other 
way.  Neither  party  is  bound  to  accept  the  terms;  but  if 
they  do  so  it  is  a  voluntary  matter,  and  the  enforcement  of 
it  is  not  illegal,  bearing  in  mind  always  that  the  contracts 
confine  themselves  to  the  state  where  the  contract  is  made. 
If  the  attempt  be  made  to  go  beyond  the  state,  the  transac- 
tion would  probably  be  illegal,  notwithstanding  its  voluntary 
character. 

But  in  the  case  before  us  it  is  not  confined  to  the  state.  It 
is  not  voluntary  on  the  part  of  the  company,  nor  is  it  a  con- 
tract of  any  kind.  On  the  contrary  it  is  involuntary.  It  has 
no  pretence  of  agreement  about  it,  and  it  relates  exclusively 
to  transactions  with  persons  and  property  of  other  states. 
There  is  no  analogy,  therefore,  between  the  transactions  re- 
ferred to  and  the  case  before  us. 

It  will  be  seen,  I  think,  by  a  careful  examination  of  all 
the  cases,  that  the  Supreme  Court  has  been  extremely  cautious 
in  attempting  to  interfere  with  the  legislation  of  any  of  the 
states,  and  has  only  done  so  when  compelled  by  the  supreme 
law  of  the  land.  And  while  the  state  tribunals  should  not 
yield  up  to  the  general  government  any  of  the  rights  which 
belong  to  the  states,  it  does  not  seem  wise  to  attempt  a  useless 
conflict  for  the  mere  purpose  of  showing  state  independence, 
when  it  is  morally  certain  that  the  Supreme  Court,  in  accord- 
ance with  its  former  decisions,  will  reverse  the  decisions  of 
such  state  tribunals. 

I  think,  therefore,  that  this  claim  on  the  part  of  the  state 
against  the  railway  company  cannot  be  sustained,  for  the 
reason  that  our  legislature  had  no  power  to  pass  the  law  under 
which  the  claim  is  made. 

In  the  case  of  the  Delaware,  Lackawanna  and  Western 
Railroad  Company,  which  was  argued  at  the  same  time  as 
the  case  with  the  Erie  Railway  Company,  the  same  questions 
and  principles  precisely  are  involved,  so  far  .at  least  as  the 
questions  which  I  have  endeavored  to  consider  are  con- 
cerned, and  the  conclusion  in  both  cases  should  be  the  same. 


604          NEW  JERSEY  SUPREME  COURT. 

State  v.  Delaware,  Lackawanna,  and  Western  R.  R.  Co. 

A  majority  of  the  court  being  of  opinion  that  the  tax  or 
duty  imposed  upon  the  said  corporations  was  rightfully  im- 
posed, and  that  the  law  which  authorized  it  was  not  an  in- 
fringement of  the  constitution  of  the  United  States. 

JUDGMENT  for  the  State  was  ordered,  in 
both  cases,  for  the  amounts  severally 
agreed  on. 


CASES  AT  LAW 


DETERMINED  IN   THE 


COURT  OF  ERRORS  AND  APPEALS 

OF  THE 

STATE  OF   NEW  JERSEY, 

AT  JUNE  TEEM,  1860. 

ADAMS  AND  TEAPHAGEN  v.  WILLIAM  B.  BOSS.* 

1.  A  deed  made  by  A.  B.,  in  consideration  of  love  and  affection  and  of 
one  dollar,  to  C.  D.,  wife  of  E.  F.,  in  which  the  said  A.  B.  doth  grant^ 
bargain,  sell,  alien,  remise,  release,  and  confirm  certain  real  estate  to 
the  said  C.  D.,  during  her  natural  life,  and  at  her  death  to  her  child- 
ren which  may  be  begotten  of  her  present  husband :   to  have  and  to 
hold  the  said  premises  unto  the  said  C.  D.  for  and  during  her  natural 
life,  and  at  her  death  to  her  children  which  may  be  begotten  of  her 
present  husband,  E.  F.,  and  containing  covenants  of  seizin  and  general 
warranty,  which  are  made  by  the  grantor  for  herself  and  her  heirs 
with  the  grantee  and  her  heirs  and  assigns,  conveyed  to  the  grantee 
an  estate  for  life  only,  with  a  remainder  vested  in  G.  H.,  a  child  of 
the  said  C.  D.,  for  life,  subject  to  open,  and  let  in  afterborn  children 
to  the  same  estate. 

2.  The  estate  created  was  not  an  estate  in  fee  or  in  fee  tail,  there  being 
in  the  grant  no  words  of  inheritance  or  procreation. 

8.  The  covenants  warranting  the  premises  to  C.  D.  and  her  heirs  did  not 
enlarge  the  estate,  nor  pass  by  estoppel  a  greater  estate  than  that  ex- 
pressly conveyed. 

4.   A  warranty  attaches  only  to  the  estate  granted,  or  purporting  to  be 

*This  case  should  have  appeared  in  the  last  volume  of  the  Law  Keports, 
but  the  opinion  was  not  received  in  time  for  publication  by  the  late  re- 
porter. 

505 


506       COURT  OF  ERRORS  AND  APPEALS. 

Adams  v.  Ross. 

granted.  If  it  be  a  life  estate,  the  covenantor  warrants  nothing  more ; 
the  conveyance  being  the  principal,  the  covenant  the  incident. 
6.  In  the  construction  of  a  deed,  the  question  is,  not  what  estate  did  the 
grantor  intend  to  pass,  but  what  estate  did  he  pass  by  proper  and  apt 
words.  No  expression  of  intent,  no  amount  of  recital  showing  the  in- 
tention, will  supply  the  omission. 

6.  A  mortgage  made  after  the  conveyance,  and  while  the  said  C.  D.  was 
a  minor,  created  no  valid  charge  on  the  estate  against  the  said  C.  D. 

7.  The  grant  made  to  C.  D.  was  within  the  provisions  of  an  act  for  the 
better  securing  the  property  of  married  women,  passed  March  25th, 
1852,  the  deed  being  subsequent  to  the  act. 

8.  The  husband  not  entitled  to  curtesy  in  the  premises  on  surviving  his 
wife,  the  grantee. 

Error  to  the  Supreme  Court. 

On  the  9th  September,  1854,  Anna  V.  Traphageu  con- 
veyed, by  deed,  to  Catharine  Ann  V.  B.  Adams,  wife  of 
Alonzo  W.  Adams,  certain  lots  and  real  estate,  situate  in 
Jersey  City,  for  and  in  consideration  of  natural  love  and 
affection  and  of  one  dollar  paid.  The  terms  used  in  the 
deed  were,  "grant,  bargain,  sell,  alien,  remise,  and  release 
and  confirm,  unto  Catharine  Ann  V.  B.  Adams,  wife  of 
Alonzo  W.  Adams,  all  that,  &c.,  situate,  &c.,  for  and  during 
the  natural  life  of  the  said  Catharine,  and  at  her  death  to  her 
children  which  may  be  begotten  of  her  present  husband, 
Alonzo  W.  Adams." 

The  deed  contained  covenants  of  seizin,  for  quiet  enjoy- 
ment, against  encumbrances,  for  further  assurance  and  of 
warranty,  which  covenants  were  made  by  the  grantor,  for 
herself  and  her  heirs,  with  the  grantee,  her  heirs  and  assigns. 

When  the  deed  was  made,  the  said  Catharine  Ann  V.  B. 
Adams  was  a  minor;  and  on  the  13th  day  of  October,  lx?ing 
still  a  minor,  she  joined  her  husband  in  a  mortgage  on  the 
premises  to  William  B.  Ro&,  to  secure  the  payment  of  the 
.-tin.  of  $6000. 

A  part  of  the  premises  was  afterwards,  under  the  au- 
thority of  law,  condemned  for  the  benefit  of  the  Erie  Rail- 
way Company,  the  assessed  value  of  which,  being  $3061, 
was  brought  into  the  Supreme  Court  for  distribution  among 


JUNE  TERM,  1860.  507 

Adams  v.  Boss. 

the  parties,  according  to  their  respective  rights,  the  money 
representing  the  whole  value  of  the  land  taken. 

The  parties  interested  were  heard  before  the  court,  in  June 
term,  1858,  on  an  application  of  Ross,  the  mortgagee,  to  be 
paid  his  mortgage  out  of  the  money  in  court. 

The  main  question  was  the  construction  to  be  given  to  the 
deed  made  by  Anna  V.  Traphagen,  to  Catharine  Ann  V.  B. 
Adams,  on  the  9th  September,  1854.  After  full  argument  of 
that  question,  and  all  others  involved  in  the  application,  the 
court  held  that  the  estate  granted  by  the  deed  was  an  estate 
in  fee  tail  in  Catharine  Ann  V.  B.  Adams  and  the  heirs  of 
her  body ;  that  her  husband,  Alonzo  W.  Adams,  was  tenant 
by  the  curtesy  initiate;  that  the  mortgage  to  William  B. 
Ross  on  the  interest  of  Mrs.  Adams  was  void  as  to  her,  but 
was  a  lien  upon  the  estate  of  her  husband,  he  surviving  her. 
See  Ross  v.  Adams,  4  Dutcher  160,  for  the  opinion  of  the 
court. 

An  order  was  made  conforming  to  these  views  of  the 
court,  and  thereupon  a  writ  of  error  was  brought  by  Ross 
and  Traphagen  to  remove  the  order  into  this  court  for  re- 
vision. 

The  cause  was  argued  at  February  term,  1860. 

For  the  plaintiff  in  error,  A.  O.  Zabriskie. 
For  the  defendant,  J.  P.  Bradley. 

At  June  term,  1860,  the  following  opinion  was  read  by 
WHELPLEY,  J.  This  writ  of  error  brings  up  for  review 
the  judgment  of  the  Supreme  Court,  giving  a  construction 
to  a  deed,  dated  the  9th  of  September,  1854,  between  Anna 
V.  Traphagen,  of  the  first  part,  and  Catharine  Ann  V.  B. 
Adams,  wife  of  Alonzo  Whitney  Adams,  of  the  second  part, 
by  which  the  grantor,  in  consideration  of  natural  love  and 
affection  and  of  one  dollar,  conveyed  to  the  grantee  the 
premises  in  the  deed  described.  The  operative  words  are 
grant,  bargain,  sell,  alien,  remise,  release,  convey,  and  con- 


508          NEW  JERSEY  SUPREME  COURT. 

Adams  v.  Ross. 

firm  unto  the  said  party  of  the  second  part,  for  and  during 
her  natural  life,  and  at  her  death  to  her  children  which  may 
be  begotten  of  her  present  husband  :  to  have  and  to  hold 
the  above  described  premises  unto  the  said  party  of  the 
second  part  for  and  during  her  natural  life,  and  at  her  death 
to  her  children  which  may  be  begotten  of  her  present  hus- 
band, Alonzo  W.  Adams. 

The  deed  contains  covenants  of  seizin,  for  quiet  enjoyment, 
against  encumbrances,  for  further  assurance  and  of  warranty. 

These  covenants  are  made  by  the  grantor  for  herself  and 
her  heirs  with  the  party  of  the  second  part,  her  heirs  and 
assigns. 

Mrs.  Adams,  at  the  date  of  the  conveyance  to  her,  was  a 
minor.  On  the  12th  October,  1855,  she,  with  her  husband, 
executed  a  mortgage  to  secure  the  payment  of  $6000,  in  one 
year  from  date,  upon  the  premises  conveyed  to  her.  She  was 
then  nineteen.  The  mortgage  was  to  Ross,  the  applicant  in 
the  Supreme  Court. 

The  Erie  Railway  Company,  under  the  provisions  of  an 
act  of  the  legislature,  took  a  part  of  the  land  in  question,  and 
hold  it  in  fee  simple.  The  value  of  the  land  taken  has  been 
ascertained  at  $3061  ;  that  is  now  in  the  Supreme  Court,  to 
be  awarded  to  the  parties  entitled  to  it,  and  who  they  are 
must  de|>end  upon  the  true  construction  of  the  deed. 

What,  then,  are  the  rights  of  Mrs.  Adams,  her  husband 
and  children,  one  having  been  born  of  the  marriage  since  the 
conveyance ;  and  what,  if  any,  are  the  rights  of  Ross,  the 
mortgagee,  to  the  money  in  court. 

The  Supreme  Court  held,  that  the  estate  granted  by  the 
deed  was  an  estate  in  fee  tail  special  in  Catharine  Adams  and 
the  heirs  of  her  body  by  her  present  husband ;  that  her  hus- 
band was  entitled  to  curtesy;  that  the  mortgage  to  Ross  on 
the  interest  of  Mrs.  Adams  was  void  an  to  her,  but  was  a 
lien  upon  the  estate  of  her  husband,  in  case  he  survived  her. 

This  decision  was  reached  by  interpreting  the  word  "chil- 
dren," in  the  deed,  as  equivalent  to  "  heirs,"  calling  in  the 


JUNE  TERM,  1860.  509 


Adams  v.  Ross. 


covenants  in  aid  of  that  interpretation,  as  throwing  light  upon 
what  the  court  called  the  intention  of  the  grantor. 

The  Supreme  Court  was  right  in  holding  the  first  estate 
conveyed  to  Mrs.  Adams,  not  a  fee  simple ;  the  express  limit- 
ation of  the  estate  to  her  during  life,  and  after  her  death  to 
her  children,  forbade  any  other  conclusion.  The  covenant, 
warranting  the  land  to  her  and  her  heirs  general,  cannot 
enlarge  the  estate,  nor  pass  by  estoppel  a  greater  estate  than 
that  expressly  conveyed.  A  party  cannot  be  estopped  by  a 
deed,  or  the  covenants  contained  in  it,  from  setting  up  that 
a  fee  simple  did  not  pass,  when  the  deed  expressly  shows  on 
its  face  exactly  what  estate  did  pass,  and  that  it  was  less 
than  a  fee.  Rawle  on  Cov.  for  Title  420 ;  Blanchard  v.  Brook, 
12  Pick.  67 ;  2  Co.  Lit.  385,  6. 

Lord  Coke  expressly  says :  but  a  warranty  of  itself  can- 
not enlarge  an  estate;  as  if  the  lessor  by  deed  release  to  his 
lessee  for  life,  and  warrant  the  land  to  the  lessee  and  his 
heirs ;  yet  doth  not  this  enlarge  his  estate. 

Justice  Vredenburgh,  in  his  opinion,  admits  this  to  be  law. 
He  says,  although  the  covenants  cannot  be  used  to  enlarge 
the  estate,  yet  they  may  be  used  to  show  in  what  sense  the 
words  in  the  conveying  part  of  the  deed  were  used.  What 
is  that  but  enlarging  what  would  otherwise  be  their  mean- 
ing ?  If  without  explanation  they  are  insufficient  to  pass  the 
estate,  does  not  the  explanation  enlarge  their  operation  ? 

The  learned  judge,  in  his  elaborate  opinion,  says :  from 
these  covenants,  it  is  demonstrated  that,  by  the  terms  chil- 
dren by  her  present  husband,  the  grantor  intended  the  heirs 
of  her  body  by  her  present  husband.  It  follows,  from  this 
argument,  that  although  the  conveying  part  of  the  deed  may 
not  contain  sufficient  to  convey  the  estate  as  a  fee  simple,  for 
example,  yet  that  if  the  covenants  show  an  intent  to  pass  a 
fee  simple,  it  will  pass. 

The  argument  is,  that  the  words  of  conveyance  and  cove- 
nant must  be  construed  together.  If  the  covenants  look  to 
the  larger  estate,  that  will  pass  upon  the  intent  indicated. 
Children  are  said  to  be  equivalent  to  heirs,  because  she  war- 

VOL.  i.  2 1 


510       COURT  OF  ERRORS  AND  APPEALS. 

Ad&ma  v.  Roes. 

ranted  to  her  heirs;  and  the  heirs  are  said  to  be  not  heirs 
general,  because  she  called  them  children. 

The  inconsistency  between  the  conveyance  and  covenant 
shows  mistake  in  the  one  or  the  other.  The  safest  rule  of 
construction  is  that  propounded  by  the  Supreme  Court ;  that 
the  quantity  of  the  estate  conveyed  must  depend  upon  the 
operative  words  of  conveyance,  and  not  upon  the  covenants 
defending  the  quantity  of  estate  conveyed. 

Starting  with  that  premise,  it  seems  difficult,  nay  impos- 
sible, to  reach  the  conclusion,  that  the  covenants  are  to  be 
looked  to  in  the  interpretation  of  the  conveyance,  as  such. 

The  covenants  only  attach  to  the  estate  granted,  or  purport- 
ing to  l>e  granted.  If  a  life  estate  only  be  expressly  conveyed, 
the  covenantor  warrants  nothing  more.  The  conveyance  is 
the  principal,  the  covenant  the  incident.  If  they  do  not  ex- 
pressly enlarge  the  estate  passed  by  the  operative  words  of  the 
deed,  I  cannot  perceive  upon  what  sound  principle  of  con- 
struction they  can  have  that  effect  indirectly  by  throwing  light 
on  the  intention  of  the  grantor.  In  the  construction  of  a 
deed  of  conveyance  the  question  is,  not  what  estate  did  the 
grantor  intend  to  {KISS,  but  what  did  he  pass  by  apt  and  pro- 
per words.  If  he  has  failed  to  use  the  proper  words,  no  ex- 
pression of  intent,  no  amount  of  recital,  showing  the  inten- 
tion, will  supply  the  omission,  although  it  may  preserve  the 
rights  of  the  jwirty  under  the  covenant  for  further  assurance 
or  in  equity  ujwn  a  bill  to  n- for  in  the  deed. 

The  object  of  the  covenants  of  a  deal  is  to  defend  the 
estate  {Missed,  not  to  enlarge  or  narrow  it.  To  adopt,  as  a 
settled  rule  of  interpretation,  that  deeds  are  to  be  construed 
like  wills,  according  to  the  presumed  intent  of  the  parties 
making  them,  to  be  deduced  from  an  examination  of  the 
whole  instrument,  would  !>••  dangerous,  and,  in  my  judgment, 
in  the  last  degree  inexpedient.  It  is  far  better  to  adhere  to 
the  rigid  rules  established  and  firmly  settled  for  centuries, 
than  to  open  KO  wide  a  door  for  litigation,  and  render  uncer- 
tain the  titles  to  lands.  The  cxj>cricn<x>  of  courts  in  the 
construction  of  wills,  the  dilliculty  in  getting  at  the  real  in- 


JUNE  TERM,  1860.  511 


Adams  v.  Boss. 


tent  of  the  party,  where  imperfectly  expressed,  or  where  he 
had  none;  the  doubt  which  always  exists  in  such  cases, 
whether  the  court  has  spelt  out  what  the  party  meant,  all 
combine  to  show  the  importance  of  adhering  to  the  rule,  that 
the  grantor  of  a  deed  must  express  his  intent  by  the  use  of 
the  necessary  words  of  conveyances,  as  they  have  been  settled 
long  ago  by  judicial  decision  and  the  writings  of  the  sages  of 
the  law.  Upon  this  point,  it  is  not  safe  to  yield  an  inch ;  if 
that  is  done,  the  rule  is  effectually  broken  down.  Where 
shall  we  stop  if  we  start  here  ? 

Littleton  says :  tenant  in  fee  simple  is  he  which  hath  lands 
or  tenements  to  hold  to  him  and  his  heirs  for  ever.  For  if  a 
man  would  purchase  lands  or  tenements  in  fee  simple,  it  be- 
hooveth  him  to  have  these  words  in  his  purchase :  "  to  have 
and  hold  to  him  and  his  heirs."  For  these  words,  "his 
heirs,"  make  the  estate  of  inheritance.  For  if  a  man  pur- 
chase lands  by  these  words,  "  to  have  and  to  hold  to  him  for 
ever,"  or  by  these  words,  "  to  have  and  to  hold  to  him  and 
his  assigns  for  ever,"  in  these  two  cases  he  hath  but  an  estate 
for  life,  for  that  there  lack  these  words,  "  his  heirs,"  which 
words  only  make  an  estate  of  inheritance  in  all  feoffments  and 
grants. 

"  These  words,  '  his  heires/  doe  not  only  extend  to  his  im- 
mediate heires,  but  to  his  heires  remote  and  most  remote, 
born  and  to  be  born,  sub  quibu's  vocabulis  'hceredibus  suis' 
omnes  hceredes,  propinqui  comprehenduntur,  et  remoti,  nati  et 
nascituri,  and  hceredum  appellatione  veniunt,  hceredes  hceredum 
in  infinitum.  And  the  reason  wherefore  the  law  is  so  precise 
to  prescribe  certaine  words  to  create  an  estate  of  inheritance, 
is  for  avoiding  of  uncertainty,  the  mother  of  contention  and 
confusion."  Co.  Lit.,  vol  1,  1  a,  8  b;  1  Shep.  Touch.  101; 
Com.  Dig.,  tit.  Estate  A,  2;  Preston  on  Est.  1,  2,  4,  5;  4 
Oi-uiae's  Dig.,  tit.  32,  c.  21,  c.  1. 

There  are  but  two  or  three  exceptions  to  this  rule.  The 
cases  of  sole  and  aggregate  corporations,  and  where  words  of 
reference  are  used  "  as  fully  as  he  enfeoffed  me."  A  gift 


512       COURT  OF  ERRORS  AND  APPEALS. 

Adams  v.  Boss. 

in  frank  marriage,  <fec.,  which  are  to  be  found  stated  in  the 
authorities  already  cited. 

These  exceptions  create  no  confusion ;  they  are  as  clearly 
defined  and  limited  as  the  rule  itself. 

The  word  "  heirs "  is  as  necessary  in  the  creation  of  an 
estate  tail  as  a  fee  simple.  1  Co.  Lit.  20,  a;  4  Cruise's  Dig., 
tit.  32,  c.  22,  §  11  ;  4  Kent's  Com.  6 ;  2  El  Com.  114. 

This  author  sets  this  doctrine  in  clear  light.  He  says: 
As  the  word  heirs  is  necessary  to  create  a  fee,  so,  in  further 
limitation  of  the  strictness  of  feodal  donation,  the  word  body, 
or  some  other  word  of  procreation,  is  necessary  to  make  it  a 
fee  tail.  If,  therefore,  the  words  of  inheritance  or  words  of 
procreation  IMS  omitted,  albeit  the  other  words  are  inserted  in 
the  grant,  this  will  not  make  an  estate  tail,  as  if  the  grant  be 
to  a  man,  and  his  issue  of  her  body,  to  a  man  and  his  seed  to 
a  man  and  his  children  or  offspring,  all  these  are  only  estates 
for  life,  there  wanting  the  words  of  inheritance. 

The  rule  in  Shelley's  case,  that  when  the  ancestor,  by  any 
gift  or  conveyance,  takes  an  estate  of  freehold,  and  in  the 
same  gift  or  conveyance  an  estate  is  limited  either  immedi- 
ately or  mediately  to  his  heirs  in  fee  or  in  tail,  that  always 
in  such  cases  the  word  heirs  are  words  of  limitation,  and  not 
of  purchase.  1  Rep.  93  ;*  4  Cruise's  Dig.,  c.  23,  §  3,  tit.  32, 
requires  the  use  of  the  word  heirs  to  bring  it  in  Deration. 

No  circumlocution  has  been  ever  held  sufficient.  It  is  be- 
lieved no  case  can  be  found  where  this  rule  has  been  held  to 
apply,  unless  the  word  heirs  has  been  used  in  the  second 
limitation. 

Neither  the  researches  of  the  learned  judge  who  delivered 
the  opinion  of  the  Supreme  Court,  nor  those  of  the  very 
diligent  counsel  who  argued  the  case  here,  have  produced  a 
case  decided  in  England  or  in  any  state  of  this  Union 
abiding  by  the  common  law,  where,  in  a  conveyance  by  deed, 
the  word  children  ha*  been  held  to  be  equivalent  to  heirs. 
That  this  has  been  determined  in  regard  to  wills  is  freely 
conceded,  but  that  does  not  answer  the  requisition.  The 

•8 Weft  due. 


JUNE  TERM,  1860.  513 

Adams  v.  Boss. 

reasoning  of  the  Supreme  Court  is,  to  my  mind,  entirely  un- 
satisfactory. In  the  administration  of  the  law  of  real  estate, 
I  prefer  to  stand  super  antiquas  vias,  stare  decisis ;  to  main- 
tain the  great  rules  of  property,  to  adopt  no  new  dogma, 
however  convenient  it  may  seem  to  be.  The  refined  course 
of  reasoning  adopted  in  the  face  of  so  great  a  weight  of  au- 
thority rather  shows  what  the  law  might  have  been,  than 
what  it  is. 

I  am  utterly  unprepared  to  overturn  the  common  law,  as 
understood  by  Littleton,  Coke,  Shepherd,  Cruise,  Blackstone, 
Kent,  and  all  the  judges  who  have  administered  it  for  three 
centuries,  and  to  adopt  the  dogma,  that  intention,  not  expres- 
sion, is  hereafter  to  be  the  guide  in  the  construction  of  deeds. 
That  would  be  as  unwarrantable  as  dangerous. 

Under  this  deed,  Mrs.  Adams  took  an  estate  for  life,  which 
was  not  enlarged  by  the  subsequent  limitation  to  a  fee  tail. 
The  remainder  vested  in  Anna  Adams,  the  child  of  the  mar- 
riage, for  life,  subject  to  open  and  let  in  afterborn  children 
to  the  same  estate. 

The  deed  operated  as  a  covenant  to  stand  seized.  The 
proper  and  technical  words  of  such  a  conveyance  are,  stand 
seized  to  the  use  of,  &c. ;  but  any  other  words  will  have  the 
same  effect,  if  it  appear  to  have  been  the  intention  of  the 
parties  to  use  them  for  that  purpose.  The  words  bargain 
and  sell,  give,  grant,  and  confirm,  have  been  allowed  so  to 
operate.  4  Cruise,  tit.  32,  c.  10,  §  1,  2. 

By  such  a  covenant,  an  estate  may  be  limited  to  a  person 
not  in  esse,  if  within  the  considerations  of  blood  or  marriage. 
Fearne  on  Bern.  288;  1  Rep.  154,  a;  I  Preston  ort Ed.  172, 
176 ;  4  T.  Rep.  39,  Doe  v.  Martin. 

This  deed,  on  the  face  of  it,  expresses  the  considerations 
of  natural  love  and  affection,  as  well  as  the  money  considera- 
tion of  one  dollar. 

It  follows,  from  these  considerations,  that  Adams  is  not 
entitled  to  curtesy  in  the  lands  on  surviving  his  wife.  The 
mortgage  to  Ross  created  no  valid  charge  on  the  estate 
against  Mrs.  Adams,  she  being  a  minor  when  it  was  executed. 


514       COURT  OF  ERRORS  AND  APPEALS. 

Adams  v.  Boss. 

Mrs.  Adams'  interest  in  the  land  was  subject  to  the  pro- 
visions of  the  act  for  the  better  securing  the  property  of 
married  women,  passed  March  25th,  1852;  the  deed  to  her 
was  after  this  act  passed. 

This  was  clearly  a  gift  or  grant,  within  the  meaning  of  the 
act.  The  legislature  did  not  intend  to  limit  the  benefits  of 
the  act  to  property  conveyed  by  a  deed  operating  a.s  a  gift  or 
grant;  all  the  ordinary  modes  of  acquiring  property  by  deed 
were  intended  by  the  use  of  the  terms  gift,  grant.  The  rea- 
soning of  Justice  Vredenburgh  upon  this  point  is  conclusive. 
Upon  the  determination  of  the  respective  life  estates,  the  land 
reverts  to  Miss  Traphagen. 

The  judgment  of  the  Supreme  Court  must  be  reversed. 
The  money  in  court  mast  l>e  invested  for  the  benefit  of  Mrs. 
Adams  for  life,  and  after  her  death  for  the  benefit  of  the 
surviving  children  of  the  marriage,  in  equal  shares,  during 
their  respective  lives,  and  at  their  deaths  respectively,  their 
several  shares  must  be  paid  to  Miss  Traphagen,  or  if  she  be 
then  dead,  to  her  heirs  or  devisees. 

Judges  COMBS,  GREEN,  RISLEY,  VAN  DYKE,  WOOD,  COR- 
NELJSON,  HAINES,  and  SWAIN  concurred  in  reversing  the 
order  of  the  Supreme  Court. 

For  affirming — None 

WhereujK)n  the  following  order  or  judgment  was  entered  : 
"This  cause  having  l>een  argued  at  the  last  term  of  this 
court,  by  the  counsel  of  both  parties,  upon  the  reasons  as- 
signed for  reversal,  and  the  court  having  ins|>ected  the  record 
ami  proceedings,  and  duly  considered  the  same,  and  being  of 
opinion  that  the  deed  executed  by  Anna  V.  Traphagen  to- 
Catharine  Ann  V.  B.  Adams  for  the  lands  out  of  which  the 
mini  paid  into  court  arose,  conveyed  to  the  said  Catharine 
Ann  V.  B.  Adams  an  estate  for  life  only,  and  that  her  hus- 
band, Al'.u/M  W.  Adams,  w  not  entitled  to  any  curtesy  or 
any  other  estate  therein;  and  that,  after  the  death  of  the 


JUNE  TERM,  1860.  515 

Adams  v.  Koss. 

said  Catharine  Ann  V.  B.  Adams  the  same  would  go  to  the 
children  begotten  of  her  body  by  her  husband,  Alonzo  W. 
Adams,  equally  to  be  divided,  if  more  than  one,  for  the  life 
of  each  of  said  children  respectively,  and  that  the  reversion 
thereof  remains  in  the  said  Anna  V.  Traphagen  :  it  is  ordered, 
adjudged,  and  decreed,  that  the  judgment  of  the  said  Supreme 
Court  be  reversed,  set  aside,  and  for  nothing  holden ;  and 
that  the  record  be  remitted  to  the  Supreme  Court,  with  direc- 
tions to  cause  the  sum  paid  into  court  to  be  invested  under 
the  control  and  direction  of  said  court,  and  that  the  interest 
thereof,  during  the  life  of  the  said  Catharine  Ann  V.  B. 
Adams,  be  paid  to  her  for  her  separate  use,  and  at  her  death 
be  paid  to  her  children  begotten  of  her  by  her  husband, 
Alonzo  W.  Adams,  in  equal  shares,  if  more  than  one,  for 
their  respective  lives,  and  at  the  death  of  such  children, 
respectively,  the  principal  sum  be  paid  to  the  said  Anna  V. 
Traphagen.  On  motion  of  A.  O.  Zabriskie,  of  counsel  with 
plaintiffs  in  error." 

CITED  in  Slack  v.  Delaware  and  Baritan  Canal  Co.,  7  0.  E.  Qreen  418 ; 
Lounsberry  v.  Locander,  10  G.  E.  Qreen  558. 


CASES  AT   LAW 


DETERMINED  IX  THE 


COURT  OF  ERRORS  AND  APPEALS 

OF  THE 

STATE   OF   NEW  JERSEY, 

AT  NOVEMBER  TERM,  1862. 

HENRY  V.  HOAGLAND  v.  ABRAHAM  VEGHTE. 

An  agreement,  whereby  the  plaintiff  granted  a  right  to  the  defendant  to 
erect  a  mill  dam,  and  stop  a  ditch,  on  his  land,  and  the  defendant 
agreed  that  all  damages  sustained  should  be  paid  by  him,  held  to  mean 
such  damages  as  the  plaintiff  might  from  time  to  time  sustain.  The 
case  of  Van  Schoick  v.  Canal  Company,  Spencer  24,  held  not  applicable. 


The  opinion  of  the  Supreme  Court  will  be  found  in  5 
Dutcher  125. 

For  the  plaintiff,  5.  B.  Ransom  and  R.  S.  Field. 
For  the  defendant,  3f.  Beaslcy. 

The  opinion  of  the  court  was  delivered  by 

lii. MII:  J.  The  judgment  of  the  Circuit  Court  in  this 
case  was  reversed  by  the  Supreme  Court,  upon  the  ground 
that,  by  the  true  construction  of  the  agreement  between  the 
parties,  made  July  23d,  1838,  the  plaintiff's  right  to  have  an 
appraisement  of  the  damages  sustained  by  him  was  complete 

616 


NOVEMBER  TERM,  1862.  517 

Hoagland  v.  Veghte. 

immediately  upon  the  granting  of  the  privileges  thereby 
conceded  to  him,  and  that  therefore  but  one  appraisement  was 
authorized,  which  when  made,  was  final  and  conclusive.  I 
cannot  concur  in  this  opinion. 

The  plaintiff  granted  to  the  defendant,  for  a  nominal  con- 
sideration, a  right  to  enter  upon  his  land,  erect  a  mill  dam, 
and  stop  an  existing  ditch ;  and  the  defendant  covenanted, 
that  all  damages  sustained  by  the  plaintiff,  by  reason  of  the 
privilege  and  authority  granted,  should  be  paid  by  him, 
which  damages  were  to  be  appraised  by  disinterested  per- 
sons, selected  one  by  each  party ;  and  in  case  they  could  not 
agree,  they  were  to  choose  a  third,  whose  report,  or  the  re- 
port of  any  two  of  them,  should  be  final  and  conclusive. 
This  agreement  is  loosely  and  inartificially  drawn,  no  time 
or  manner  of  using  the  privileges  granted  being  mentioned, 
nor  is  it  specified  when  the  damages  are  to  be  assessed.  The 
object  undoubtedly  was  to  place  the  defendant  in  a  different 
situation  from  that  of  a  mere  trespasser.  He  had  conferred 
on  him  an  absolute  right  to  use  the  plaintiff's  land,  by  en- 
tering on  it  for  the  purpose  of  building  and  maintaining  his 
dam,  and  could  not  be  compelled  to  pay  damages  upon  the 
principle  of  requiring  him  to  remove  it,  but  only  such  actual 
damages  as  the  owner  might  sustain.  Since,  in  the  nature 
of  things,  such  damages  would  accrue  from  time  to  time,  as 
the  work  progressed,  or  as  its  effect  was  developed,  it  would 
seem  but  reasonable  that  they  should  be  appraised  from  time 
to  time  as  they  occurred.  No  other  proceeding  could  do  the 
plaintiff  justice;  and  that  this  mode  of  proceeding  involved 
no  injustice  or  hardship  to  the  defendant  is  manifest  from 
the  fact,  that  three  different  appraisements  have  been  made 
without  the  slightest  objection  on  his  part.  Indeed  nothing 
can  be  plainer  than  that  the  parties  to  this  agreement  both 
understood  that  it  provided  for  the  damages  being  appraised 
and  paid  after  they  had  been  sustained.  This,  indeed,  is  the 
literal  meaning  of  its  language.  To  hold  that  by  the  phrase, 
"all  damages  sustained,"  was  meant  such  depreciation  in 
value  of  the  plaintiff's  lands,  by  the  fact  of  his  granting  cer- 


518       COURT  OF  ERRORS  AND  APPEALS. 


Hoagland  v.  Veghte. 


tain  privileges  and  rights  to  the  defendant,  and  before  it 
could  even  l>e  known  how  they  would  be  exercised,  it  seem* 
to  me  would  be  to  hold  what  would  be  unreasonable  and  un- 
just to  both  parties,  and  what  they  could  not  have  intended. 

The  case  of  Van  Schoick  v.  The  Delaicare  and  Raritan 
Canal  Company,  Spencer  249,  is  relied  on  as  in  point.  That, 
however,  was  a  case  differing  from  this  in  essential  particu- 
lars. The  question  was  as  to  the  nature  and  effect  of  an 
assessment  of  damages,  provided  for  in  the  charter  of  the 
company,  for  taking  a  portion  of  the  plaintiff's  land  very 
particularly  described,  and  constructing  thereon  a  canal,  all 
to  be  held  for  its  exclusive  use,  against  the  consent  of  the 
owner.  The  judge  who  delivered  the  opinion  of  the  court 
considered  the  words  "  damages  sustained "  as  used  in  the 
law,  although  in  the  past  tense,  and  therefore  projM>rly  mean- 
ing such  damages  as  had  at  the  time  accrued,  to  have  a  dif- 
ferent meaning,  l>ecause  the  company  had  no  right  to  take 
the  land  or  construct  the  canal,  or  in  any  wise  affect  the 
owner's  interest  or  property,  till  the  same  had  been  valued^ 
and  the  damages  assessed.  The  law,  he  said,  clearly  con- 
templated such  prospective  damages  as  might  arise. 

In  the  agreement  now  under  consideration  there  is  nothing 
to  qualify  the  proper  meaning  of  the  language  employed, 
and  to  show  that  prospective  damages  were  contemplated. 
Had  an  appraisement  been  attempted  upon  that  principle, 
there  can  be  little  doubt  the  defendant  would  have  felt  him- 
self quite  as  much  aggrieved  as  the  plaintiff  now  does  by 
that  adopted  at  this  late  day  by  the  Supreme  Court.  There 
had  been  three  awards  for  damages,  before  the  present  pro- 
ceedings commenced,  without  objection  by  the  defendant. 
The  last  of  these,  it  apj^irs,  was  brought  before  the  Su- 
preme Court,  and  there  held  to  l>e  good  for  all  damages  not 
before  adjudicated.  3  Zaft.  92.  When  the  proceedings  now 
l>efore  us  were  commenced,  the  plaintiff,  by  his  counsel,  ob- 
jected that  final  damages,  including  the  whole  value  of  the 
land  injured,  had  been  awarded  and  paid,  but  he  did  not 


NOVEMBER  TERM,  1862.  519 

Hoagland  v.  Veghte. 

advance  the  principle,  that  there  could  be  only  one  appraise- 
ment. 

The  declaration  claimed  damages  which  had  been  sus- 
tained after  the  making  of  the  last  award,  and  upon  the 
construction  of  the  agreement  above  stated,  was  good. 
Three  of  the  pleas  demurred  to  set  up  the  several  awards 
as  conclusive,  and  were  no  good  answer  to  the  declaration. 
The  sixth  plea,  whicli  was  also  demurred  to,  set  up  as  a  bar 
that  the  defendant  refused  to  join  in  selecting  an  arbitrator, 
because  the  plaintiff  refused  to  make  a  further  specification 
of  the  damages  claimed  by  him.  This  same  defence  Avas 
urged  on  the  trial  of  the  issues  in  fact,  and  the  judge 
having  charged  the  jury  that  the  refusal  of  the  plaintiff  to 
specify  what  damages  he  claimed  was  no  justification  for  the 
defendant  declining  to  select  an  arbitrator,  a  bill  of  excep- 
tions was  sealed. 

It  is  clear  that  the  defendant  was  under  no  obligation  to 
choose  an  arbitrator,  if  the  plaintiff  had  been  in  fact  awarded 
all  the  damages  he  had  sustained ;  but  this  was  a  matter  to 
be  settled  by  the  arbitrators,  who  would  have  been  bound 
carefully  to  exclude  all  damages  upon  which  the  former  arbi- 
trators had  adjudicated,  or  upon  which,  under  the  submission, 
they  ought  to  have  adjudicated.  But  there  is  nothing  in  the 
agreement,  or  in  the  nature  of  the  case,  which  required  the 
plaintiff  to  make  a  formal  specification  of  his  damages. 

Another  error  was  assigned,  for  the  refusal  of  the  judge  to- 
charge  the  jury,  "  that  the  damages  to  be  assessed  were  those 
arising,  in  consequence  of  the  dam,  to  the  freehold,  and  not 
for  the  loss  or  damage  to  crops  which  the  land  might  have 
produced,  if  not  soaked  or  otherwise  injured." 

It  appears,  by  the  bill  of  exceptions,  that  the  plaintiff 
offered  evidence  to  prove  that,  the  quantity  of  broken  and 
useless  land,  at  the  time  of  the  commencement  of  the  suit,, 
was  considerably  greater  than  at  the  date  of  the  last  award ; 
that  the  qualify  of  the  crops  had  deteriorated  since  the  same 
date,  and  that  the  action  of  the  water,  caused  by  the  erec- 
tion of  the  dam,  had  permanently  injured  the  freehold  by 


520   COURT  OF  ERRORS  AND  APPEALS. 

Hoagland  v.  Veghte. 

washing  the  surface  and  by  soakage.  There  does  not  appear 
to  have  been  any  objection  to  this  evidence,  and  the  charge 
asked  for  was,  that  damages  might  properly  be  assessed  for 
those  arising  to  the  freehold,  but  not  for  loss  or  damage  to 
crops  which  the  land  might  have  produced,  if  not  soaked  or 
injured.  I  confess  I  am  unable  to  perceive  the  distinction. 
Deterioration  in  the  quality  of  the  crops  was  a  damage  to  the 
land,  and  the  extent  of  the  deterioration  afforded  one  means 
of  ascertaining  what  was  the  amount  of  the  damage  to  the 
freehold. 

Being  of  opinion  that  there  was  no  error  in  the  record  of 
the  Circuit  Court,  but  that  the  Supreme  Court  erred  in  re- 
versing the  judgment,  I  think  the  judgment  of  the  Supreme 
Court  must  be  reversed,  and  the  judgment  of  the  Circuit 
Court  in  all  things  affirmed. 

For  reversal — Judges  COMBS,  CORNELBON,  ELMER,  GREEN, 
KENNEDY,  SWAIN,  WOOD. 

For  affirmance — Judge  VREDENBURGH. 

Judgment  reversed. 


CASES  AT  LAW 


DETERMINED  DT  THE 


COURT  OF  ERRORS  AND  APPEALS 

OF  THE 

STATE  OF   NEW  JERSEY, 

AT  MAECH  TEEM,  1863. 


THE  MAYOE  AND  COMMON  COUNCIL  OF  JEESEY  CITY  v, 
THE  STATE,  JOHN  HOWETH  ET  AL.,  PKOSECUTOES. 

1.  A  certiorari  to  remove  and  set  aside  an  assessment  for  improving, 
curbing,  and  guttering  a  street,  which  the  prosecutors  allege  encroaches 
on  their  property,  is  not  the  proper  mode  of  trying  the  title  of  the 
prosecutors  to  the  land  in  question. 

2.  The  proceedings  of  surveyors  of  the  highways  in  vacating  part  of  a 
street  which  had  been  dedicated  to  public  use,  but  never  recognized  as 
a  public  highway  by  lawful  authority,  held  to  be  void.    (See  1  Beasley 
299,  Holmes  v.  Jersey  City.)     The  Court  of  Common  Pleas  cannot  ap- 
point surveyors  to  vacate  a  mere  act  of  dedication. 

3.  The  Supreme  Court  cannot,  upon  affidavits  taken  upon  a  certiorari  to 
remove  an   assessment,  either  properly  or  conveniently  try  title  to 
lands,  and  settle  disputed  facts  involving  a  determination  of  questions 
of  fraud  and  intention. 

4.  An  assessment  will  not  be  set  aside  merely  because  the  money  has  been 
expended  upon  land  not  properly  subjected  to  public  use. 

5.  A  notice  of  intention  to  pave  a  street,  unless  otherwise  expressed,  re- 
fers to  a  street  as  it  is  dejure. 

6.  The  right  o£  reconsidering  lost  measures  inheres  in  every  body  pos- 
sessing legislative  powers. 

Error  to  the  Supreme  Court. 

521 


522         COURT  OF  ERRORS  AND  APPEALS. 

Jersey  City  v.  State,  Howeth,  pros. 

A  certiorari  was  sued  out  of  the  Supreme  Court,  at  the 
instance  of  John  Howeth  et  al.,  prosecutors,  against  the 
Mayor  and  Common  Coucil  of  Jersey  City,  to  remove  into 
that  court  an  assessment  made  under  an  ordinance  of  the 
common  council  for  paving  and  improving  Bright  street. 
The  Supreme  Court  set  aside  the  assessment,  as  to  the  prose- 
cutors, principally  for  the  reason  that  the  ordinance  had  not 
been  regularly  passed,  and  was  not  legal.  (See  ante  93.) 

The  cause  was  removed  into  this  court  by  writ  of  error. 

For  the  plaintiff  in  error,  A.  D.  MoClellund  and  A.  0. 
Zabritkie. 

For  the  defendant,  J.  Flemming  and  W.  B.  Williams. 

CHIEF  JUSTICE.  When  this  assessment  was  made,  Bright 
street  was  de  facto  eighty  feet  wide.  To  that  width  it  had 
been  filled  in,  curbed,  guttered,  and  the  sidewalks  laid,  in 
pursuance  of  the  ordinance  passed  September  20th,  1859. 
Before  the  work  was  done,  the  prosecutors  had  submitted  to 
the  claim  of  the  city  to  have  their  fences  on  the  south  side 
of  the  street,  within  that  width,  removed.  After  their  re- 
moval, the  work  was  done  without  further  objection  by  the 
prosecutors;  indeed  one  of  them,  John  Coar,  proposed  for  the 
work.  On  the  27th  November,  1860,  more  than  a  year  after 
the  passage  of  the  ordinance  directing  the  work  to  be  done, 
the  assessment  was  made,  which  was  removed  into  the  Su- 
preme Court  for  review.  On  the  llth  December,  1860,  the 
prosecutors  remonstrated  against  its  confirmation,  for  rea- 
sons affecting  only  the  mode  of  making,  and  the  principles 
upon  which  the  assessment  was  made,  not  alleging  that  the 
improvement  had  been  illegally  ordered.  The  remonstrance 
itself  shows  that  they  had  submitted  to  the  action  of  tire 
city  council  in  regard  to  the  removal  of  all  encroach nu-nts 
within  the  line  of  the  street  at  its  width  of  eighty  feet ;  in- 
deed they  complain,  that  they  have  not  been  allowed  compen- 
.sation  for  work  done  where  it  was  filled  in  at  the  width  of 
sixty  feet. 


MAECH  TERM,  1863.  523 

Jersey  City  v.  State,  Howeth,  pros. 

On  the  28th  February,  1861,  a  ceiiiorari  was  allowed  and 
issued  on  application  of  the  prosecutors,  to  remove,  in  the 
language  of  the  writ,  the  assessment,  and  all  the  proceedings 
touching  and  concerning  the  same,  into  the  Supreme  Court ; 
and  according  to  the  practice  of  the  court,  reasons  were 
assigned  for  setting  it  aside,  none  of  which  allege  that  the 
ordinance  was  illegal  because  it  provided  for  improving  the 
street  at  the  width  of  eighty  feet. 

In  this  posture  of  the  case,  the  principal  reason  urged  for 
setting  the  assessment  aside  was,  that  Bright  street  had  been 
illegally  ordered  improved,  as  prescribed  by  the  ordinance, 
at  the  width  of  eighty  feet,  whereas  in  fact  and  in  law  the 
street  was  only  sixty  feet  wide ;  and  that  iti  doing  the  work, 
the  property  of  the  prosecutors  on  the  street  had  been  en- 
croached upon,  and  taken  out  of  their  possession  and  com- 
prehended within  the  street,  thus  adding  to  the  street,  on  its 
south  side,  a  strip  of  land  twenty  feet  in  width,  to  which  the 
-city  had  no  right. 

A  certiorari  to  review  the  assessment,  sued  out  under  such 
a  state  of  facts,  was  not  a  proper  mode  of  trying  the  title  of 
the  prosecutors  to  this  strip,  or  whether  it  still  remained 
subject  to  its  original  dedication  as  a  street. 

The  city  claimed  that  Grand  street,  the  name  of  which  at 
this  point  has  been  changed  to  Bright  street,  had  been  dedi- 
<»ted  as  a  street  eighty  feet  wide,  in  the  year  eighteen  hun- 
dred and  thirty-five,  by  Van  Yorst,  who  mapped  out  the 
property  through  which  it  ran  into  city  lots,  and  laid  down 
on  the  map  the  street  eighty  feet  wide ;  that  he  sold  lots  by 
the  map  with  reference  to  the  street  so  laid  down,  and  to 
make  the  act  of  dedication  to  public  uses  unequivocal,  de- 
posited the  map,  as  a  public  record,  in  the  county  clerk's 
office,  while  the  land  was  still  a  part  of  the  township  of  Van 
Vorst. 

On  the  other  h  and,  the  prosecutors  insisted  that  the  city 
had  accepted  the  dedication  of  the  street  only  as  sixty  feet 
wide,  not  including  this  strip  of  land  claimed  by  them,  and, 


524      COURT  OF  ERRORS  AND  APPEALS. 

Jersey  City  v.  State,  Howeth,  pros. 

as  such,  had  ordered  it  filled,  by  an  ordinance  passed  in  1852, 
the  year  after  the  incorporation  of  the  city. 

After  the  act  of  dedication,  by  Van  Vorst,  of  the  land,  and 
before  it  became  subject  to  the  provisions  of  the  city  charter, 
it  still  l>eing  in  the  township  of  Van  Vorst,  in  1846,  survey- 
ors had  been  appointed  under  the  highway  act,  Nix.  Dig. 
700,*  who,  by  their  certificate  and  return,  had  vacated  a  strip 
of  the  road  on  the  south  side  twenty  feet  wide,  being  the  land 
in  dispute,  thereby  assuming  the  authority  to  annul  Vau 
Voret's  act  of  dedication  pro  tanio,  although  the  street  had 
never  been  recognized  by  public  authority  as  a  public  high- 
way. 

This  proceeding  of  the  surveyors,  this  court,  in  the  case  of 
Holmes  v.  Jersey  City,  decided  in  November,  1857,  1  Beasley 
299,  declared  null  and  void  for  want  of  jurisdiction  in  the 
Court  of  Common  Pleas  to  appoint  surveyors  to  vacate  a 
mere  act  of  dedication,  reversing  the  decision  of  the  Chan- 
cellor, holding  that  the  act  of  vacation  was  valid.  The  facts 
of  the  case  will  be  found  fully  stated  in  the  report,  and  need 
not  be  repeated. 

Upon  the  argument,  counsel  discussed  elaborately  the  points 
made  by  them ;  that  by  this  action,  under  these  facts,  the  city 
was  estopped,  legally  or  equitably,  from  claiming  this  strip  as 
a  part  of  the  street,  or  that  at  least  the  facts  showed  an  accept- 
ance by  the  city  of  the  acts  of  dedication  only  to  the  extent 
of  a  street  sixty  feet  wide,  and  a  rejection  of  the  residue  of 
the  dedication. 

If  the  prosecutors  wished  to  try  these  mixed  questions  of 
law  and  fact,  they  have  not  taken  the  proper  mode  or  time  to 
do  so.  They  should  have  done  that  by  an  action  of  trespass, 
or  have  refused  to  give  up  [x>&session,  and  compelled  an  action 
of  ejectment,  or  have,  in  some  other  way,  mado  a  direct  issue 
with  the  city  UJKHI  their  claim  to  the  land  as  private  property, 
discharged  of  the  consequences  of  the  dedication. 

The  attempt  has  been  made  in  this  suit,  to  try  and  deter- 

•Bet.,p.  989. 


MARCH  TERM,  1863.  525 

Jersey  City  v.  State,  Howeth,  pros. 

mine  a  question  of  title  to  lands  not  directly,  but  collaterally, 
and  that  too  without  the  intervention  of  a  jury.  A  deter- 
mination of  the  case  in  their  favor  upon  this  point  would  not 
give  the  prosecutors  the  possession  of  the  lands  or  settle  the 
controversy.  The  opinion  of  the  court  upon  the  facts,  as 
they  appear  here,  would  not  necessarily  conclude  the  parties 
to  a  common  law  action,  where  the  facts  might  be  different  as 
proved. 

The  Supreme  Court  could  not,  upon  affidavits  taken  upon 
an  assessment  certiorari,  either  properly  or  conveniently  try 
title  to  lands  and  settle  disputed  facts,  involving  the  determi- 
nation of  questions  of  fraud  and  intention. 

The  theory  upon  which  the  prosecutors  assumed  that  these 
questions  were  involved  in  the  case  seemed  to  be  this :  that 
the  assessment  was  null  and  void  if  made  for  paving  a  part 
of  a  street  the  city  had  not  acquired  the  right  to  as  a  street ; 
that  this  was  a  misapplication  of  the  money,  and  therefore 
they  could  not  be  assessed  to  pay  it.  If  this  position  should 
be  held  sound,  it  is  much  to  be  feared  that  few  assessments 
could  be  collected.  To  permit  such  questions  to  be  raised  in 
such  a  mode  would  be  not  only  extremely  inconvenient  in 
practice,  but  seems  to  be  the  assumption  of  a  rule  of  law 
clearly  unsound. 

If  these  prosecutors  should  be  permitted  to  raise  these 
questions  in  this  way,  no  reason  is  perceived  why  any  other 
property  holder  assessed  could  not  do  the  same ;  for,  on  the 
theory  assumed,  the  right  to  do  so  does  not  rest  upon  the 
ownership  of  land  encroached  upon. 

If  an  assessment  may  be  set  aside  merely  because  the 
money  has  been  expended  upon  land  not  properly  subjected 
to  public  use,  the  extent  of  the  infringement  is  obviously 
immaterial — it  would  not  matter  whether  it  was  six  inches  or 
twenty  feet. 

The  width  of  the  street,  as  paved,  could  not  be  questioned 
upon  the  certiorari.  State  v.  Jersey  City,  5  Dudcher  441. 

This  view  of  the  case  disposes  of  the  point  discussed  on  the 
argument,  whether  the  burthen  of  proof,  as  to  the  width  of 

VOL.  i.  2  K 


526       COURT  OF  ERRORS  AND  APPEALS. 

Jersey  City  v.  State,  Howeth,  pros. 

Bright  street,  lay  upon  the  city  or  upon  the  prosecutors ;  the 
latter  alleging  that  upon  an  assessment  certiorari,  the  city 
was  bound  to  support  the  assessment  by  proof  of  the  legal 
width  of  the  street.  If  they  were  bound  to  do  so  in  this 
case,  why  would  they  not  be  compelled  to  do  so  in  all  cases? 
This  claim  of  the  prosecutors  seems  to  set  in  clear  light  the 
absurdity  of  the  whole  attempt  to  try  the  title  to  the  land 
upon  ceiiiorari. 

Although  the  court  will  not,  for  the  reason  stated,  under- 
take to  settle  the  rights  of  the  prosecutors  to  the  disputed 
lands,  yet  I  am  unwilling  to  let  this  ca.se  pass  without  ex- 
pressing my  dissent  from  the  view  expressed  by  the  Supreme 
Court  of  our  decision  in  Holmes  v.  Jersey  City. 

It  was  decided  in  that  case,  upon  the  facts  then  before  the 
court,  not  only  that  the  return  of  the  surveyors  was  null, 
but  that  Bright  street  was  legally  eighty  feet  wide.  This 
court  so  intended  to  decide;  and  after  the  cause  was  re- 
inanded  to  the  Court  of  Chancery,  a  decree  was  entered, 
founded  upon  the  opinion  of  this  court,  that  the  street  was 
eighty  feet  wide. 

The  late  Chief  Justice,  in  delivering  the  opinion  of  the  court, 
said :  the  proceedings  of  the  surveyors,  appointed  by  the 
Common  Pleas  of  Hudson  county,  altering  the  width  of 
Grand  street  (now  at  this  point  called  Bright  street)  as  origi- 
nally dedicated  and  o|»ened,  were  null  and  void,  and  that  the 
street,  until  altered  by  competent  authority,  must  be  deemed 
and  taken  to  be  eighty  feet  wide. 

Such  is  the  effect  of  the  dedication  until  the  common  coun- 
cil, by  virtue  of  the  power  granted  by  the  charter,  shall  alter 
the  width  of  the  street. 

The  same  view  was  taken  by  this  court  of  the  effect  of 
such  a  dedication  in  the  case  of  Tlie  Mayor,  &c.,  of  Jersey 
( 'Uy  v.  Ttie  Morris  Canal  ami  Banking  Company,  1  Bcasley 
548.  The  opinions  then  expressed  were  necessary  to  the 
decision  of  the  cause,  and  not  mere  obiter  dicta,  and  were 
concurred  in  by  the  court.  Jf  therefore  the  question,  whether 
Bright  Htreet  was  eighty  feet  wide  when  the  ordinance  passed 


MARCH  TERM,  1863.  527 


Jersey  City  v.  State,  Howeth,  pros. 


directing  the  improvement,  properly  arose  for  decision  in  this 
case,  I  can  perceive  no  reason  for  coming  to  a  different  result 
from  that  arrived  at  in  Holmes  v.  Jersey  City.  If  the  city, 
submitting  to  the  authority  of  the  return  of  the  surveyors, 
and  by  mistake  assuming  it  to  be  binding  upon  the  city  while 
it  remained  unreversed,  worked  the  street  only  sixty  feet,  wide, 
and  the  lot  holders  enclosed  the  residue  of  it  within  their  lots, 
put  fences  around,  and  buildings  upon  the  strip  of  land,  such 
action,  so  founded  upon  mistake,  cannot  be  regarded  as  a  par- 
tial acceptance  of  the  whole  dedication,  and  a  rejection  of  the 
residue. 

If  the  doctrine  of  estoppel  in  pals  can  be  applied  to  such  a 
case,  under  any  circumstances,  which  it  is  not  now  necessary  to 
decide,  no  estoppel  could  arise  where  one  of  the  parties  to  it — 
the  city — acted  not  sua  sponte,  but  in  submission  to  supposed 
legal  coercion,  nor  to  a  case  of  mutual  mistake. 

No  act  or  conduct  of  the  city  authorities,  while  the  vacat- 
ting  proceedings  were  supposed  valid,  can  have  any  other  in- 
terpretation than  that  of  submission  to  legal  authority.  They 
cannot,  for  the  same  reason,  be  regarded  as  refusing  to  accept 
a  dedication  as  a  whole,  a  part  of  which  both  parties  supposed 
was  legally  annulled. 

While  the  city  is  in  its  nascent  state,  and  before  the  streets 
are  improved,  little  regard  is  had  to  strict  street  lines.  En- 
croaching lot  owners,  sometimes  for  temporary  convenience, 
and  at  other  times  intending  permanently  to  acquire  the 
lands,  often  build  within  the  street  lines ;  they  did  so  in  this 
case,  but  by  so  doing  acquired  no  right  of  permanent  posses- 
sion or  title. 

The  contrary  doctrine  would  effectually  destroy  great  public 
rights  in  all  cities  which,  like  Jersey  City,  depend  upon  the 
doctrine  of  dedication  for  the  preservation  of  their  parks  and 
streets. 

The  effect^ of  the  Van  Vorst  dedication  in  1835  has  not 
been  limited  or  impaired  by  any  act,  conduct,  neglect,  or 
acquiescence  of  the  city,  and  Bright  street  is  still  eighty  feet 
in  width. 


528       COURT  OF  ERRORS  AND  APPEALS. 

Jersey  City  v.  State,  Ifoweth,  pros. 

It  was  objected  that  no  notice  was  given,  as  required  by 
the  charter,  of  the  object  of  the  ordinance  as  passed.  It 
was  conceded  that  a  notice  was  given  of  an  application  for 
an  ordinance  to  have  Bright  street,  between  Grove  and  Jer- 
sey street,  improved.  The  ordinance,  as  passed,  conformed 
to  the  notice,  except  that  it  expressed  that  Bright  street 
was  to  be  improved  at  its  legal  width  of  eighty  feet.  This 
is  no  variance.  When  a  street  is  improved,  the  law  implies 
that  it  is  to  be  done  at  its  legal  width.  The  additional  ex- 
pression was  surplusage;  it  was  not  necessary  to  state  the 
width  of  the  street,  the  thickness  of  the  flagstones,  or  the 
size  of  the  pebbles  with  which  the  paving  was  to  be  done. 

Of  necessity,  a  notice  of  intention  to  pave  a  street,  unless 
otherwise  expressed,  refers  to  a  street  as  it  is  de  jure,  unless  it 
be  the  law  that  encroachments  must  be  removed  before  the 
presentation  of  the  petition  for  the  improvement.  The  notice 
given  located  and  defined  the  extent  of  the  improvement;  it 
is  not  bad  because  it  did  more. 

To  say  that  the  ordinance  was  in  effect  to  widen  the  street, 
assumes  that  the  street  was  not  de  jure  eighty  feet  wide,  and 
that  erections  standing  upon  the  twenty  feet  were  upon  the 
private  proj>erty  of  the  prosecutors;  it  has  been  already 
shown  that  the  street  was  of  right  eighty  feet  wide. 

The  ordinance  was  to  pave,  first  removing  the  obstructions, 
not  widen  it.  The  city  could  not  proceed  in  any  other  way 
without  admitting  the  right  of  the  prosecutors  to  the  land, 
and  compensation  for  the  encroaching  improvements. 

The  judgment  below  was  founded  U|>on  the  position,  that 
if  the  street  had  been  encroached  upon  by  buildings  and 
fences  within  its  limit-,  the  proceeding  must  be  to  widen  the 
street,  or  pave  it  as  it  was.  It  loses  sight  entirely  of  the 
question,  Whether  the  buildings  and  fences  were  lawfully 
within  its  limits  or  not ;  whether  the  lot  holders  were  or  were 
not  eiuToachere ;  if  they  were,  there  was  no  necessity  of  any 
legal  proceeding  to  increase  the  width;  it  was  a  question  of 
labor,  not  law ;  nor  were  they  assessed  to  pay  for  their  own 


MARCH  TERM,  1863.  529 

Jersey  City  v.  State,  Howeth,  pros. 

'ruin  ;  if  they  were  not  encroachers,  they  should  not  have  ad- 
mitted they  were  by  voluntarily  yielding  up  the  possession. 

It  was  objected  that  the  ordinance  was  at  the  first  meeting 
lost,  and  the  vote  reconsidered,  and  laid  upon  the  table,  and 
passed  at  the  next  meeting.  The  right  of  reconsidering  lost 
measures  inheres  in  every  body  possessing  legislative  powers. 

Equally  untenable  is  the  objection,  that  the  ordinance  was 
amended  in  the  mode  already  mentioned ;  after  reconsidera- 
tion, the  sense  was  in  no  essential  respect  changed. 

The  objections  taken  to  the  assessment  itself  are  not  sus- 
tained by  the  facts.  The  commissioners  did  determine  the 
property  benefited  by  the  improvement,  and  described  it  suf- 
ficiently, and  what  proportion  of  the  expenses  should  be 
borne  by  the  several  owners  thereof;  and  they  have  stated 
that  they  made  a  map  and  schedule  containing  a  full  state- 
ment of  the  assessment,  the  several  lots  and  property  benefited, 
the  several  and  respective  amounts  of  such  benefit,  and  the 
names  of  the  owners  of  such  lots  and  property,  respectively,  to 
which  they  refer  as  a  part  of  their  report. 

It  was  also  urged  that  the  assessment  was  made  upon  what 
is  called  the  frontage  principle.  If  that  mode  properly  dis- 
tributed the  benefits  among  the  owners  of  the  property  bene- 
fited there  can  be  no  objection  to  its  use. 

The  court  has  held  that  this  principle  must  not  be  arbi- 
trarily applied,  without  the  exercise  of  judgment  in  each  case. 
The  principle  is  not  necessarily  wrong  in  all  cases.  That  is 
us  great  an  error  as  to  assume  it  right  in  all  cases. 

For  reversal — COMBS,  CORNELISON,  ELMER,  HAINES,  KEN- 
NEDY, FORT,  SWAIN,  WHELPLEY,  WOOD.  9. 

For  affirmance — None. 

Judgment  of  Supreme  Court  reversed. 

CITED  in  State,  Moran,  pros.,  v.  Hudson  City,  5  Vroom  27-31 ;  State,  As- 
sociates Jersey  City,  pros.,  v.  Mayor,  &c.,  of  Jersey  City,  5  Vroom  44 ;  State, 
fudney,  pros.,  \.  Passaic,  8  Vroom  68. 


CASES  AT  LAW 


DETERMINED   IN   THE 


COURT  OF  ERRORS  AND  APPEALS 


OF   THE 


STATE  TOP   NEW  JERSEY, 

AT  JUNE  TERM,  1863. 


JOHN  B.  PARSELL  ET  AL.  v.  THE  STATE,  JOHN  M.  MANN,. 
JOSHUA  DOUGHTY,  ET  AL.,  PROSECUTORS. 

L  Under  the  2d  section  of  the  act  concerning  roads,  Nix.  Dig.  737,  the 
courts  of  Common  Pleas  and  Supreme  Court  are  bound,  as  a  legal  ne- 
cessity, to  appoint  the  surveyors  of  the  township  through  which  the 
road  is  to  nin,  unless  it  is  to  run  through  their  lands,  or  unless  the- 
court,  for  some  other  reason  in  the  exercise  of  a  sound  discretion, 
shall  think  they  ought  not  to  be  appointed. 

2.  The  simple  fact,  that  the  surveyors  are  taxpayers  in  the  township,  is- 
not  sufficient  to  exclude  them,  or  to  warrant  the  courts  in  refusing  to 
appoint  them.  The  supplement  of  1850,  making  the  townships  liable 
to  pay  for  lands  taken  for  roads,  furnishes  no  ground  in  ittelf  to  which 
the  discretion  of  the  courts  can  be  applied.  It  may  be  an  element, 
among  other  reasons,  which,  takrn  together,  the  court  may  deem  suf- 
ficient to  exclude  the  surveyor*  from  appointment. 

8.  The  Court  of  Common  Pleas,  having  exercised  their  discretion  in  the 
matter  of  appointment,  and  having  so  certified  in  their  order,  it  is  not 
the  subject  matter  of  review  in  the  Supreme  Court. 

4.  If  the  grounds  for  exclusion  can  be  inquired  into,  the  court  below 
must  be  called  on  to  certify  the  farts  in  regard  to  them,  before  the  tes- 
timony of  witncmes  can  be  retorted  to.  The  evidence  of  one  of  the 
judges  who  made  the  order,  is  insufficient  to  contradict  the  language 
made  use  of  by  the  whole  court  on  the  fuce  of  the  order  of  appointment. 


JUNE  TERM,  1863.  531 


Parsell  v.  State,  Mann  et  al.,  pros. 


In  the  term  of  April,  1859,  the  Court  of  Common  Pleas 
of  the  county  of  Somerset,  upon  application  of  John  R.  Par- 
sell  and  others  for  the  appointment  of  surveyors  of  the 
highways  to  lay  out  a  road  in  the  township  of  Bridgewater, 
in  said  county,  appointed  John  P.  Voorhees  and  Cyrenius  T. 
Stryker,  of  the  township  of  Branchburg;  Israel  H.  Hill  and 
John  B.  Brokaw,  of  the  township  of  Hillsborough,  and  John 
N.  Hoagland  and  Peter  L.  Suydam,  of  the  township  of 
Franklin,  six  surveyors  of  the  highways  of  said  county,  for 
the  purpose  of  laying  out  said  road,  "regard  having  been 
had  to  the  appointment  of  the  surveyors  of  the  said  township 
where  the  said  road  is  applied  for  to  be  laid,  whom  the  court, 
for  sufficient  cause,  refused  to  appoint;  which  surveyors  shall 
meet,"  &c. 

The  surveyors  met,  on  the  6th  day  of  June,  and  laid  out 
the  road  as  applied  for,  having  adjudged  the  same  to  be 
necessary.  They  also  made  an  assessment  of  the  damages 
the  owners  of  the  land  and  real  estate  taken  for  the  road 
would  sustain  by  laying  out  the  same,  of  all  which  return  was 
duly  made  according  to  law. 

These  proceedings  were  removed  into  the  Supreme  Court 
by  writ  of  certiorari,  returnable  to  the  term  of  June,  1861, 
at  the  instance  of  the  State,  John  M.  Mann,  Joshua  Doughty, 
and  others  being  prosecutors — and  thereupon  the  following 
reasons  were  assigned  for  setting  them  aside  : 

1st.  Because  the  Court  of  Common  Pleas,  in  the  applica- 
tion of  said  surveyors,  acted  upon  an  erroneous  principle,  in 
excluding,  as  interested  against  said  road,  the  surveyors  of 
the  township  in  which  the  road  was  proposed  to  be  laid 
merely  because  of  their  residence  in  said  township,  and  in 
appointing  the  surveyors  of  other  townships,  who  were  in- 
terested in  laying  the  road,  as  sharers  in  whatever  benefit 
the  road  would  yield,  while  they  contributed  nothing  to  the 
burthens  it  imposed. 

2d.  Becanse  real  applicants  for  said  road,  including  the 
persons  in  whose  handwriting  the  application  for  the  appoint- 
ment of  surveyors  is  written,  and  who  employed  counsel, 


532       COURT  OF  ERRORS  AND  APPEALS. 

Parst'll  v.  Stato,  Mann  et  al.,  pros. 

paid  the  fees  of  the  surveyors,  and  who  advocated  the  road 
in  speeches  l>efore  the  surveyors,  have  had  damages  assessed 
to  them,  they  not  having  signed  the  written  application  for 
the  appointment  of  surveyors,  in  contravention  of  the  spirit 
of  the  road  act 

3d.  Because  the  originators  and  real  parties  in  such  appli- 
cation paid  certain  of  the  surveyors  who  laid  said  road  sums 
of  money,  as  fees,  that  are  not  only  more  than  the  law 
allows,  hut  unusual,  unprecedented,  and  illegal. 

4th.  Because  the  surveyors,  in  laying  out  said  road,  acted 
upon  an  erroneous  principle  in  laying  the  same,  viz.  that  it 
is  the  duty  of  the  public  to  render  railroad  crossings  safe; 
whereas,  by  the  charter  of  the  Somerville  and  Easton  Rail- 
road Company,  the  crossing  of  whose  road  the  road  was  laid 
to  avoid,  are  bound  so  to  cross  the  common  roads  by  passages 
and  bridges,  over  and  under  the  same,  as  not  to  impede  the 
use  of  the  common  roads. 

5th.  Because  the  said  return  Is,  in  divers  other  respects, 
uncertain,  defective,  and  illegal. 

A  rule  was  taken,  on  application  of  the  plaintiff  in  ocrtio- 
rari,  that  the  jwrties  have  leave  to  take  affidavits,  to  be  used 
on  the  argument  of  the  case,  and  both  parties  examined  wit- 
nesses under  the  rule.  Evidence  was  produced  to  show,  among 
other  things,  the  ground  taken  by  the  court  in  refusing  to 
appoint  the  surveyors  of  the  township  of  Bridgewater  to  act 
in  laying  out  the  road. 

The  case  was  argued  in  the  branch  court,  before  Justices 
VAX  DYKE  and  HAINER,  at  February  term,  1861,  and  at  the 
term  of  June  following,  the  court  ordered  the  proceedings 
of  the  Court  of  Common  Picas  and  of  the  surveyors  to  be 
reversed  and  set  aside. 

The  opinion  was  delivered  by  Justice  VAN  DYKE,  and  ns 
the  cose  has  not  been  reported,  it  is  deemed  proper  to  insert 
the  opinion  here,  as  showing  fully  and  clearly  the  grounds  on 
which  the  court  placed  their  judgment. 

VAN  DYKE,  J.     The  ccrtiorari  in  this  case  is  brought  to 


JUNE  TERM,  1863.  533 


Parsell  v.  State,  Mann  et  al.,  pros. 


reverse  the  proceedings  of  the  Court  of  Common  Pleas,  and 
also  of  surveyors  of  the  highways  appointed  by  them  to  lay 
out  a  public  road  in  the  county  of  Somerset,  in  the  township 
of  Bridgewater. 

The  first  objection  to  the  proceedings  is,  that  the  Court  of 
Common  Pleas  refused  to  appoint  the  surveyors  of  the  high- 
ways of  the  (ownship  in  which  it  was  proposed  to  lay  the 
road  simply  and  only  because  they  were  residents  of  that 
township,  on  the  supposition,  it  is  supposed,  that  they  were 
interested  in  the  assessments,  if  any,  that  should  be  made  of 
the  damages  to  the  land  taken.  The  order  of  the  court  states, 
that  regard  was  had  to  the  appointment  of  those  surveyors, 
but  that  they  refused  their  appointment  for  sufficient  reasons. 
But  that  the  court  did  exclude  them  expressly,  and  only  on 
•  the  ground  of  their  being  residents  of  the  township,  is  not 
only  clearly  proved,  but  it  is  not  denied  or  controverted  in 
any  way.  The  question,  then,  is  fairly  presented  for  our  con- 
sideration, whether  it  is  lawful  or  otherwise  for  the  court,  in 
all  cases,  to  exclude  the  surveyors  of  the  township  through 
which  it  is  proposed  to  lay  the  road,  merely  because  they  are 
residents  of  the  township. 

It  is  insisted,  however,  that  this  is  a  discretionary  power, 
lodged  with  the  Court  of  Common  Pleas,  to  appoint  the  sur- 
veyors of  the  township,  and  that  they  are  the  exclusive  judges 
of  the  sufficiency  of  the  reasons  on  which  they  act,  and  that 
their  determination  in  the  matter  is  not  subject  to  reversal  or 
review.  It  is  true,  that  court  is  authorized  to  determine  what 
reasons  should  exclude  the  surveyors  of  such  particular  town- 
ship or  of  any  other  township ;  and  if  we  have  no  knowledge 
of  the  reasons  or  principles  on  which  they  act,  we  cannot 
properly  interfere  with  their  determination.  But  if  the  law 
requires  the  Court  of  Common  Pleas  to  appoint  particular 
surveyors,  unless  there  be  some  sufficient  reason  to  the  con- 
trary, and  the  court  reject  such  surveyors,  and  furnish  to  us 
clearly  the  feason  or  principle  on  which  they  thus  rejected 
them,  and  if  that  principle  be  cluarly  wrong,  and  contrary  to 
.the  clear  meaning  of  the  act,  this  court  is  not  only  authorized, 


534       COURT  OF  ERRORS  AND  APPEALS. 

Parsell  r.  State,  Mann  et  al.,  pros. 

but  bound  to  reverse  such  decision.  The  discretion  with  which 
that  court  is  clothed  must  be  exercised  according  to  law,  and 
not  contrary  thereto.  If  they  should  reject  the  surveyors  of 
a  township  from  which  they  were  required  to  take  them,  ex- 
cept for  a  sufficient  reason,  and  they  should  reject  them  alone 
on  the  ground  of  religious  belief,  this  court  should  not  sus- 
tain such  determination  as  legal,  nor  permit  it  to  be  practised, 
but  should  set  such  determination  aside.  So  in  the  case  before 
us.  If  the  reason  or  principle  on  which  the  Court  of  Common 
Pleas  rejected  the  surveyors  of  the  township  of  Bridgewater 
be  illegal,  such  as  this  court  should  not  sanction,  and  which 
should  not  be  tolerated  in  practice,  this  court  is  bound  to  re- 
verse the  proceedings,  not  only  for  the  correcting  of  the  mis- 
chief in  this  particular  case,  but  for  the  government  of  the 
courts  in  all  other  similar  cast's.  The  question  then  is, 
whether  the  Court  of  Common  Pleas  was  right  or  wrong  in 
rejecting  the  surveyors  of  the  township  through  which  the 
road  was  to  run  simply  because  they  were  residents  of  that 
township.  This  was  not  the  exercise  of  a  discretion,  but  the 
adoption  of  an  inflexible  rule  to  be  applied  to  all  cases. 

This  question  received  some  consideration  in  the  case  of 
The  Stale  v.  Atkinson,  3  Dutcher  420,  and  so  far  as  that 
case  goes,  it  seems  to  sustain  the  decision  of  the  Court  of 
Common  Pleas.  That  decision,  so  far  as  it  is  supposed  to 
sanction  that  view  of  the  case,  we  are  a«iked  to  review,  as 
not  being  correct  in  principle.  If  the  question  was  distinctly 
presented  in  that  case,  and  was  carefully  considered  and  de- 
cided, and  especially  if  we  consider  it  correctly  decided,  we 
should  adhere  to  it,  and  again  assert  the  principle.  If,  on 
the  other  hand,  the  case  did  not  fully  present  the  question — 
if  it  was  only  incidentally  considered  by  a  jyart  of  the  court, 
and  possibly  not  concurred  in  by  the  remainder  of  it,  although 
there  may  have  been  a  concurrence  in  a  result,  and  esjiecially 
if  its  correctness  be  questionable,  I  can  see  no  reaHon  why 
we  should  not  so  far  reverse  it,  as  to  declare  explicitly  what; 
the  law  is  on  the  subject  now,  when  we  have  it  directly  lie- 
fore  us.  In  the  case  of  The  State  v.  Atkinson,  the  question 


JUNE  TERM,  1863.  535 

Parsell  v.  State,  Mann  et  al.,  pros. 

now  under  consideration  was  not  before  the  court,  so  far  as 
we  can  learn,  at  all.  There  was  no  complaint  made  there 
that  the  court  either  had  or  had  not  in  fact  appointed  the  sur- 
veyors of  the  township  in  which  the  road  was  to  be  laid.  It 
did  not  appear,  from  the  case,  whether  such  surveyors  had 
been  appointed  or  not,  and  the  question  raised  was  not,  and 
could  not  have  been  in  that  case,  that  the  court  had  improperly 
rejected  or  improperly  appointed  the  surveyors  of  that  town- 
ship, but  the  only  question  was  on  the  order  of  the  court 
itself,  that  it  did  not  show  on  its  face  that  the  court  had  con- 
sidered the  question  at  all ;  in  other  words,  the  objection  was, 
"  It  does  not  appear,  by  the  order,  that  regard  was  had  to  the 
appointment  of  the  surveyors  of  the  highways  of  those  town- 
ships where  the  said  road  was  applied  for  to  be  laid  out." 
The  court  held  that  that  matter  need  not  be  set  out  on  the 
face  of  the  order.  This  is  all  that  was  decided,  so  far  as  this 
feature  of  the  case  is  concerned.  The  question  is  one  of  some 
importance,  and  as  it  has  never  before  been  presented  for  de- 
cision, although  somewhat  discussed,  it  is  proper  that  it  should 
be  examined  and  settled. 

It  seems  impossible  to  doubt  that  the  legislature,  in  the 
act  concerning  roads,  imperatively  required  the  Court  of 
Common  Pleas  of  the  counties  to  appoint,  on  such  applica- 
tions, the  surveyors  of  the  townships  through  which  the  road 
was  to  run,  unless  it  was  to  run  through  the  lands  of  such 
surveyors,  or  unless  they  were  excluded  by  some  other  legal 
reason  such  as  should  exclude  any  surveyor.  And  it  seems 
equally  free  from  doubt,  that  if  the  courts  refuse  to  obey  this 
requirement  of  the  statute,  except  for  the  reasons  contem- 
plated, such  refusal  would  be  ground  of  reversal.  The  Court 
of  Common  Pleas,  from  deference,  it  is  supposed,  to  the  case 
of  The  State  v.  Atkinson,  did  refuse  to  obey  this  injunction 
of  the  act,  and  did  refuse  to  appoint  the  surveyors  of  the 
township  through  which  the  road  was  to  be  laid,  and  so  re- 
fused, for  ntfone  of  the  reasons  contemplated  by  the  act,  but 
did  so  simply  and  only  because  they  were  surveyors  of  that 
township. 


536       COURT  OF  ERRORS  AND  APPEALS. 

Parsell  v.  State,  Mann  et  al.,  proe. 

This  provision  of  the  law  has  never  been  repealed  or  dis- 
turlxxl  since  it  was  originally  p;issed.  It  could  only  be  re- 
pealed by  the  legislature  doing  so  in  express  terras,  or  by  the 
passage  of  a  subsequent  act,  so  in  conflict  with  it  that  both 
wuld  not  stand,  in  which  case  the  latter  would  prevail.  But 
there  is  no  such  act.  It  is  supposed  that  the  supplement, 
passed  March  1st,  1850,  providing  for  the  assessment  of  dam- 
ages  in  behalf  of  the  persons  whose  lands  should  be  taken  for 
the  purposes  of  the  road,  in  some  way  annuls  or  renders  in- 
operative this  requirement  of  the  original  act ;  but  that  sup- 
plement does  not  in  terms  repeal  the  former  act,  nor  is  there 
anything  in  it  which  is  inconsistent  with  that  act,  in  respect 
to  the  matter  under  consideration. 

It  is  insisted  that  the  power  given  by  the  supplement  to 
assess  and  award  damages  to  the  landowners,  which  damages 
are  to  be  paid  by  the  taxpaying  residence  of  such  townships, 
renders  the  surveyors  of  such  townships  interested  in  the 
question,  because  they,  as  residents  thereof,  will  be  required 
to  contribute  to  the  payment  of  such  assessment;  but  this 
in  no  way  interferes  or  conflicts  with  the  principle  contained 
in  the  original  act,  for  there  never  was  a  time  since  its  pas- 
sage that  the  surveyors  of  the  townships  were  not  interested, 
as  taxpayers,  in  every  road  laid  in  their  townships.  No 
public  road  was  ever  laid  out  by  public  authority,  constructed 
and  kept  in  repair,  including  its  bridges,  &c.,  except  at  a 
yearly  expense  to  the  taxpayers  of  the  township  in  which  it 
is  located;  and  the  adding  of  the  additional  expense  of  pay- 
ing for  the  land  taken  for  the  road  does  not  change  or  intro- 
duce any  new  principle  creating  an  interest  in  the  surveyors, 
but  only  increases,  to  some  extent,  the  burthens  previously 
imposed  ujn>n  them.  The  question  was  not  first  introduced 
by  the  supplement,  that  the  inhabitants  of  a  township  should 
!»•  taxed  for  the  making  :md  sustaining  of  each  additional 
highway  laid  out  in  their  township,  but  that  the  tax,  in  a 
particular  feature,  was  liable  to  be  increased.  Instead  of  its 
l>cing  increased  fifty  writs  a  year  by  the  laying  out  and 
maintaining  a  new  highway,  it  is  now  liable  to  be  increased, 


JUNE  TERM,  1863.  537 


Parsell  v.  State,  Mann  et  al.,  pros. 


for  the  first  year,  to  one  dollar,  or  over,  for  each  taxpayer, 
and  after  that  the  same  as  if  no  assessment  of  damages  had 
been  made.  The  idea,  therefore,  that  the  surveyors  of  each 
township  are  affected  primarily  by  the  laying  out  of  roads  in 
their  respective  townships,  is  nothing  new.  It  was  always  so. 
And  all  that  can  be  said  of  the  supplement  is,  that  it  may 
increase  remotely,  their  interest  in  the  laying  out  of  new 
roads,  but  introduces  no  new  principle  which  did  not  exist 
before. 

The  legislature,  then  passed  the  act  requiring  the  survey- 
ors of  the  townships  in  which  the  road  was  to  run  to  be  ap- 
pointed, when  it  was  as  well  known  as  it  can  be  now,  that 
they  were  interested  as  taxpayers  in  the  laying  out  of  such 
roads,  and  this  must  have  been  for  some  good  and  sufficient 
reason.  Perhaps  it  was  because,  being  better  acquainted 
with  the  locality  than  strangers,  they  were  better  qualified 
to  judge  of  the  necessity  for  the  road,  or  it  may  have  been 
because  the  laying  of  all  roads  imposed  a  burthen,  in  the 
way  of  tax,  on  the  inhabitants  of  the  townships  through 
which  they  were  made,  and  that  it  was  unjust  to  impose  such 
tax,  unless  the  people  of  the  townships  were  represented  in 
the  tribunal  imposing  such  tax.  This  latter  reason  is  a  very 
natural  and  important  one,  and  if  it  be  the  one  which  gov- 
erned the  legislature,  it  is  certainly  a  very  strange  construction 
of  it  to  withhold  the  representation  the  moment  the  tax  is  to 
be  increased.  But  whatever  the  reason  may  have  been  which 
caused  the  insertion  of  the  provision,  it  is  very  certain  that 
such  reason  still  exists  with  all  the  force  which  it  ever  pos- 
sessed ;  and  the  legislature,  never  having  repealed  either  the 
provision,  or  the  reason  for  it,  I  certainly  think  we  are  not 
at  liberty  to  disregard  them,  but,  on  the  contrary,  we  are 
bound  to  see  that  they  are  enforced.  I  think,  therefore,  the 
obligation  to  appoint  the  surveyors  of  the  townships  through 
which  the  road  is  to  be  laid,  is  just  as  imperative  as  it  ever 
was;  and  the  construction  of  the  courts  always  was,  and  the 
practice  always  was,  that  the  surveyors  of  these  particular 
townships  were  to  be  appointed  of  course  and  as  a  legal  ne- 


538       COURT  OF  ERRORS  AND  APPEALS. 

Parsell  v.  State,  Mann  et  al.,  pros. 

oessity,  unless  the  reasons  to  the  contrary  were  such  as 
should  exclude  any  surveyor.  But  if  the  doctrine  contended 
for  be  the  right  one,  the  surveyors  of  the  townships,  instead 
of  being  preferred,  are  for  ever  excluded,  and  can  never  in 
any  such  case  be  appointed,  although  the  law,  as  it  stands, 
requires  that  they  should  be.  It  never  could  have  been  in- 
tended, that  the  mere  fact  of  the  surveyors  being  residents 
of  the  township*  to  be  affected  should  exclude  them  from 
the  survey,  for  that  is  the  very  reason  why  they  are  to  be 
appointed. 

The  principle  contended  for  would  place  every  township 
entirely  at  the  mercy  of  outsiders,  (for  even  the  petitioners 
for  the  road  need  not  reside  in  the  township),  who  being 
strangers  to  their  wants,  and  indifferent  to  their  burthens,  may 
inflict  on  them  the  most  intolerable  oppressions,  not  only 
against  their  will  and  consent,  but  without  even  the  privilege 
of  a  voice  in  the  matter.  The  rule  also,  if  it  applies  to  the 
:ippointment  of  surveyors,  must  of  necessity  apply  to  the 
appointment  of  freeholders  to  review  the  proceedings  of  the 
surveyors.  They,  too,  must  l>e  taken  from  foreign  townships  ; 
and  the  case  before  us  furnishes  a  pretty  striking  exemplifica- 
tion of  the  danger  and  mischief  of  which  I  speak,  for,  upon 
looking  at  the  return,  we  find  that,  in  addition  to  the  ordinary 
expenses,  there  are  assessments  to  an  amount  of  over  $1000 
in  going  a  distance  of  little  ovor  half  a  mile. 

I  think,  therefore,  that  the  Court  of  Common  Pleas,  in  re- 
jecting the  surveyors  of  the  township  of  Bridgewater,  for 
the  reason  by  which  they  were  governed,  committed  an  error, 
which  it  is  our  duty  as  well  as  our  province  to  reverse. 

Other  reasons  were  urged  in  favor  of  a  reversal ;  but  as  I 
deem  the  one  already  considered  sufficient  for  that  purj>ose,  it 
is  unnecessary  to  examine  the  others. 

The  judgment  of  the  Supreme  Court  having  been  removed 
into  this  court,  the  said  John  Parsell  and  others,  alleging  error 
in  the  said  judgment,  prayed  its  reversal. 

1st.  Because  the  court,  in  and  by  their  said  judgment,  did 


JUNE  TERM,  1863.  539 

Parsell  v.  State,  Mann  et  al.,  pros. 

determine  that  the  return  of  the  surveyors  laying  out  said 
road  was  defective,  null,  and  void,  because  the  Court  of  Com- 
mon Pleas  of  the  county  of  Somerset,  in  appointing  said  sur- 
veyors to  lay  out  said  road,  refused  to  appoint  the  surveyors 
of  the  township  of  Bridgewater,  where  the  said  road  was  pro- 
posed to  be  laid  out. 

2d.  Because  the  said  court,  in  and  by  their  said  judgment 
in  setting  aside  said  return,  did  determine  that  it  was  proper 
and  right  that  the  surveyors  of  the  township  where  the  road 
was  applied  for  to  be  laid  were  not  interested  in  the  laying 
out,  or  otherwise,  of  such  road  by  reason  of  their  being  tax- 
payers to  such  an  extent  as  to  exclude  them  from  acting  as 
such  surveyors. 

3d.  Because  the  said  court,  in  deciding  said  case  and  setting 
aside  said  return,  did  so  on  the  ground  that  the  surveyors  of 
Bridgewater  had  been  unlawfully  excluded  by  the  Court  of 
Common  Pleas  from  acting  as  suveyors  in  laying  out  the  said 
road. 

4th.  Because  there  is  error  in  the  entry  of  the  judgment  by 
the  Supreme  Court. 

5th.  The  general  error. 

For  the  plaintiffs  in  error,  FL.  V.  Speer  and  A.  0.  ZabrisUe. 
For  the  defendants,  J.  P.  Bradky  and  P.  D.  Vroom. 

OGDEN,  J.  A  concise  history  of  the  entire  proceedings  in 
this  matter,  with  an  observance  of  dates,  will  present  the 
questions  which  the  court  is  required  to  settle. 

On  the  8th  day  of  April,  1859,  John  R.  Parsell,  with  six- 
teen others,  freeholders  and  residents  in  the  county  of  Som- 
erset, made  application,  in  due  form,  to  the  judges  of  the 
Court  of  Common  Pleas  of  the  county,  for  the  appointment 
of  six  surveyors  of  the  highways,  to  lay  out  a  public  road 
fifty  feet  wide,  in  the  township  of  Bridgewater,  in  said 
county.  On  the  20th  of  April,  the  court  granted  their  pe- 
tition, and  appointed  the  surveyors  of  the  townships  of 


640       COURT  OF  ERRORS  AND  APPEALS. 

Pareell  v.  State,  Mann  et  al.,  pros. 

Branchburgh,  Hillsborough,  and  Franklin,  stating,  in  their 
order  of  appointment,  that  they  had  regard  to  the  appoint- 
ment of  the  surveyors  of  the  township  where  the  road  was 
applied  to  be  laid,  whom,  for  sufficient  cause,  they  refused  to 
appoint.  The  six  surveyors  met  at  the  place  and  time  fixed 
in  the  order  of  appointment,  and  proceeded  to  view  the 
premises;  and  having  heard  what  was  to  be  said  for  and 
against  the  road,  did  adjudicate  the  said  public  road  to  be 
necessary;  and  did  lay  out  the  same,  and  cause  it  to  be 
marked  at  proper  distances  in  the  line  thereof;  and  did 
order  it  to  be  opened  for  public  use,  on  the  4th  of  October, 
1859,  and  all  signed  a  written  return  of  their  proceedings, 
dated  June  6th,  1859.  At  the  same  time  they  made  an  as- 
sessment in  writing  of  damages  in  favor  of  several  parties, 
stating  them  therein  to  be  owners  of  land  taken  for  the  road, 
and  not  applicants  therefor. 

A  caveat  was  filed  against  recording  the  return,  and  at  the 
next  term  of  the  court,  freeholders  were  appointed  to  view 
the  said  road,  under  the  8th  section  of  the  act  concerning 
roads.  They  met  early  in  December,  1859,  and  proceeded 
to  view  the  road,  but  the  majority  being  in  favor  of  leaving 
it  undisturbed,  they  separated  without  making  any  certifi- 
cate, as  they  were  advised  that  it  was  not  necessary  for  them 
to  certify ;  and  thereupon  there  should  have  been  an  order 
of  the  court  for  the  clerk  to  record  the  return  of  the  sur- 
veyors. If  they  had  made  a  certificate,  no  application  for  a 
vacation  of  the  road  could  have  l>een  made  under  one  year 
after  the  recording;  but  as  they  neglected  to  certify,  an 
application  was  made  for  the  appointment  of  surveyors  to 
vacate,  and  an  appointment  was  made,  as  if  the  return  had 
boen  ordered  to  be  recorded,  and  the  new  surveyors  met  on 
the  ground,  in  February,  1860,  within  two  months  after  the 
vi«w  was  had  by  freeholders.  Those  surveyors  did  not  vacate 
or  disturb  the  road.  On  the  28th  of  February,  1860,  a  writ 
of  ceriiorari  was  awarded,  directed  to  the  judges  of  the  Court 
of  Common  Pleas,  to  bring  into  the  Supreme  Court,  on  the 
fir-t  Tuesday  in  June,  the  application,  appointment  of  sur- 


JUNE  TERM,  1863  541 

Parsell  v.  State,  Mann  et  al.,  pros. 

veyors,  their  return  and  the  assessment  of  damages,  and  the 
order  to  record,  with  all  things  touching  and  concerning  the 
same.  On  the  30th  of  May,  1860,  they  sent  up  the  papers, 
certifying  therewith  that  no  order  for  .recording  the  return 
had  been  made  by  them. 

In  June  term,  1860,  on  the  return  of  the  certiorari,  a  rule 
was  entered  in  the  minutes  of  the  Supreme  Court,  that  the 
parties  have  leave  to  take  affidavits,  to  be  used  on  the  argu- 
ment of  the  same. 

On  the  28th  of  June,  reasons  were  filed  in  that  court  for  set- 
ting aside  the  appointment,  return,  and  assessment  of  damages. 

Affidavits  were  taken,  and  exhibits  were  made,  and  in 
June  term,  1861,  the  court  ordered  that  the  appointment  of 
the  surveyors,  the  return  by  them  made,  and  all  proceedings 
by  them  had  and  taken,  should  be  set  aside  and  made  void, 
Justice  Van  Dyke  delivering  the  opinion  of  the  court.  That 
order  has  been  removed  for  review  into  this  court  by  a  writ 
of  error. 

The  Supreme  Court  set  aside  the  return  of  the  survey- 
ors upon  one  ground  only,  to  wit,  that  the  Court  of  Com- 
mon Pleas  acted  on  an  erroneous  principle  in  excluding,  as 
interested  against  the  road,  the  surveyors  of  the  township 
of  Bridgewater,  wherein  the  road  was  applied  to  be  laid, 
merely  because  of  their  residence  in  said  township,  and  being 
taxpayers  therein. 

The  first  two  assignments  of  error  in  this  court  refer  to 
that  view  taken  by  the  Supreme  Court,  and  they  set  forth 
that  the  Supreme  Court  erred  in  determining  the  return  to 
be  null  and  void,  because  the  Court  of  Common  Pleas  refused 
to  appoint  the  surveyors  of  Bridgewater,  and  because  the 
Supreme  Court  did  determine,  that  the  fact  of  surveyors 
being  taxpayers  in  a  township  does  not  make  them  so  inter- 
ested in  the  road  as  to  exclude  them  from  acting  as  such 
surveyors. 

The  case  presents  two  distinct  matters  for  consideration. 

First.  The  correct  construction  of  a  part  of  the  2d  section 
of  the  act  concerning  roads. 

VOL.  i.  2  L 


542       COURT  OF  ERRORS  AND  APPEALS. 

Parsell  v.  State,  Mann  et  al.,  pros. 

Second.  Whether  it  properly  appeared  before  the  Supreme 
Court  that  the  Court  of  Common  Pleas  had  disregarded  the 
requirement  of  that  section  in  making  the  appointment  of 
surveyors. 

The  course  of  legislation  in  New  Jersey  on  the  subject  of 
public  roads,  from  the  year  1675  to  the  present  time,  clearly 
shows  that  the  laying  out  of  roads  was  held  to  be  a  township 
business,  and  that  officers  resident  in  the  township  where  a 
road  was  to  be  laid,  were  always  considered  to  be  projxjr  per- 
sons to  have  a  voice  in  the  matter.  In  the  act  of  1675,  two 
men  were  required  to  be  appointed  in  each  township  in  the 
province,  for  laying  out  roads  therein.  In  1716,  all  applica- 
tions for  roads  were  required  to  be  made  to  the  two  survey- 
ors of  the  town,  who  were  directed  to  call  to  their  aid  the 
surveyors  from  two  adjacent  townships. 

An  act,  passed  in  1774,  required  applications  to  be  made 
to  the  surveyors  of  the  township  where  the  road  was  pro- 
posed to  be  laid,  and  to  the  surveyors  of  the  two  nearest  and 
adjacent  townshijw,  and  it  declared  that  at  least  one  of  the 
surveyors  of  the  township  in  which  the  road  was  applied  for 
should  consent  to  the  road  and  should  sign  the  return.  The 
mode  of  making  applications  for  roads  was  changed  by  a 
supplement,  passed  in  1792,  which  directed  that  the  appli- 
cation shall  be  made  to  the  judges  of  the  Court  of  Common 
Pleas,  who  were  to  apjNjint  six  surveyors  of  the  county  with- 
out restriction*.  This  act  was  re[>ealed  in  1799,  by  a  new  act 
then  passed,  which  contained  the  same  provision.  The  law 
stood  thus  until  22d  of  February,  1811,  when  the  following 
language  was  introduced  into  the  2d  section:  "ever  having 
regard  to  the  appointment  of  the  surveyors  of  the  highways 
of  those  township  where  the  said  road  shall  be  so  applied  for 
to  be  laid,  &c.,  provided  that  no  surveyors  shall  be  appointed 
through  whose  land  the  road  may  run." 

Two  decisions  of  the  Supreme  Court,  one  made  in  1791, 
the  other  in  1792,  reported  in  Coxc,  pages  55  and  128,  gave 
a  strict  construction  to  the  law,  as  it  then  stood.  The  court 
ruled,  that  it  was  fatal  to  a  return  of  surveyors,  because  four 


JUNE  TERM,  1863.  543 

Parsell  v.  State,  Mann  et  ah,  pros. 

were  not  taken  from  adjacent  townships ;  they  said,  that  the 
law  might  occasion  inconvenience,  but  that  was  exclusively  a 
matter  for  legislative  consideration.  The  judge  used  the  fol- 
lowing strong  language :  "  We  are  here  to  declare  the  law, 
and  cannot  decide  against  the  express  words  of  it.  The  legis- 
lature has  declared  who  are  to  be  the  judges,  by  unequivocal 
words.  They  are  to  be  the  surveyors  chosen  from  the  nearest 
townships ;  we  have  no  authority  to  frame  a  proviso  to  the 
act,  and  to  declare  that,  under  certain  circumstances  and  in 
peculiar  cases,  they  may  come  from  townships  not  the  nearest : 
this  would  be  to  assume  legislative  powers." 

In  May  term,  1812,  on  an  application  to  the  Supreme 
Court  to  appoint  surveyors,  the  appointment  of  one  of  the 
surveyors  of  the  township  through  which  the  contemplated 
road  ran  was  objected  to,  and  an  affidavit  was  offered  to  be 
read,  to  prove  that  he  had  given  an  opinion  as  to  the  pro- 
priety of  laying  the  road.  The  court  said  :  the  act  of  assem- 
bly makes  it  the  duty  of  the  court  to  appoint  the  surveyors 
of  the  town  through  which  the  road  runs;  one  case  excepted, 
which  was  not  the  one  before  them.  It  has  been  the  clear 
policy  of  the  legislature,  in  their  different  enactments  on  the 
subject  of  roads,  to  have  the  judgment  of  surveyors  of  the 
township  through  which  a  road  was  to  run,  expressed  upon 
its  necessity;  and  although  the  supplement  of  1792  left  the 
selection  entirely  within  the  control  of  the  Court  of  Common 
Pleas,  yet,  in  1811,  the  legislature  limited  the  arbitrary  power 
vested  in  the  court,  by  making  it  their  duty  to  appoint  the 
surveyors  of  the  township,  unless  the  road  would  run  through 
their  lands.  In  the  case  of  The  State  v.  Atkinson,  3  Dutcher 
420,  the  judge,  in  delivering  his  opinion,  said,  that  the  act  of 
March,  1850,  giving  compensation  to  land  owners,  made  the 
surveyors  of  the  township  interested  as  taxpayers,  and  although 
that  act  did  not  expressly  repeal  so  much  of  the  then  existing 
road  act  as  required  that  regard  should  be  had  to  the  appoint- 
ment of  the  surveyors  of  the  township,  yet  that  it  rendered 
the  requirement  nugatory. 

For  the  purpose  of  testing  the  accuracy  of  this  view  taken 


544       COURT  OF  ERRORS  AND  APPEALS. 

Parsell  v.  State,  Mann  et  al.,  pros. 

by  the  late  learned  justice,  let  us  suppose  that  the  act  of  1850 ' 
had  been  passed  in  1812,  as  a  supplement  to  the  act  of  1811, 
would  it  have  virtually  rej)ealed  the  requirement  respecting 
the  surveyors  of  the  township,  or  render  it  nugatory  ?  Clearly 
it  would  not.  The  two  enactments  would  not  have  been 
inconsistent  with  each  ether;  and  under  the  act  of  1811,  the 
courts  would  have  been  bound  to  appoint  surveyors  as  judges 
whom  the  legislature  had  declared,  in  unequivocal  words, 
should  l)e  appointed,  unless  they  came  within  the  one  proviso 
of  being  land  owners  on  the  route.  So  far  as  the  decision  in 
the  case  of  Atkinson  conflicts  with  rulings  of  the  Supreme 
Court,  made  before  1818,  establishing  the  necessity  of  the 
appointment  of  the  surveyors  of  the  township,  unless  they 
come  within  the  exception  in  the  statute,  we  consider  it  is  not 
sound  law. 

The  next  general  "act  concerning  roads"  was  passed  9th 
of  February,  1818,  and  is  found  in  Penninffton's  Revision  of 
the  Laws,  page  615.  It  contains  an  addition  to  the  proviso 
of  the  2d  section.  In  it,  the  proviso  reads,  "  that  no  sur- 
veyor shall  be  appointed  through  whose  lands  the  road  may 
run,  or  who,  for  any  other  reason  which  the  court  in  their 
discretion  shall  deem  sufficient,  think  ought  not  to  be  ap- 
pointed." That  act  was  re-enacted  in  the  revision  in  1846, 
and  was  the  law  of  the  state  when  the  supplement  of  1850 
was  passed,  which  provides  for  com  inclination  to  the  owners 
for  lands  taken  for  the  purposes  of  public  roads.  This  court, 
una  voce,  declare  the  true  construction  of  the  2d  section  of 
the  act  to  be,  that  the  Court  of  Common  Pleas  and  the  Su- 
preme Court  are  bound,  as  a  legal  necessity,  to  appoint  the 
surveyors  of  the  township  through  which  the  road  is  to  run, 
unless  it  is  to  run  through  their  lands,  or  who  for  some  other 
reason  which  the  court,  in  thu  exercise  of  a  sound  legal  dis- 
cretion, think  should  not  be  appointed  ;  and  further,  that  the 
simple  fact  of  the  surveyors  l>eing  taxpayers  in  the  township, 
is  not  sufficient  to  exclude  them  or  to  warrant  the  courts  in 
re-fusing  to  appoint  them,  and  thut  the  supplement  of  1850 
furnishes  no  ground,  of  itself,  to  which  the  discretion  of  the 


JUNE  TERM,  1863.  545 

Parsell  v.  State,  Mann  et  al.,  pros. 

courts  can  be  properly  applied.  It  may  be  an  element, 
among  other  reasons,  which,  taken  together,  the  court  may 
deem  sufficient  to  exclude  the  surveyors  from  appointment. 

This  brings  us  to  the  consideration  of  the  question  of  fad, 
upon  which  the  Supreme  Court  rested  their  judgment  in 
setting  aside  the  proceedings  had  below,  which  fact  was 
stated  by  them  to  have  been  clearly  proved ;  and  the  exami- 
nation of  it  raises  the  second  point,  which  I  have  made,  viz. 
whether  it  properly  appeared  before  the  Supreme  Court, 
that  the  Court  of  Common  Pleas  disregarded  the  require- 
ment of  the  2d  section  of  the  road  act  in  making  the  appoint- 
ment of  surveyors?  The  justice  said,  that  the  Court  of  Com- 
mon Pleas  rejected  the  surveyors  of  the  township  through 
which  the  road  was  run,  simply  because  they  were  residents 
-of  that  township,  and  taxpayers  therein;  and  that  such  re- 
jection was  not  the  result  of  an  exercise  of  discretion,  but 
was  the  adoption  of  an  inflexible  rule,  to  be  applied  to  all 
cases.  No  such  reason  for  the  decision  of  the  Common  Pleas 
appears  upon  their  order  returned  with  the  eertiorari.  It  is 
distinctly  and  clearly  stated  therein,  that  regard  was  had  to 
the  appointment  of  the  surveyors  of  the  said  township  where 
the  said  road  applied  for  was  to  be  laid,  whom  the  court,  for 
sufficient  cause,  refused  to  appoint.  It  is  manifest,  upon  the 
face  of  the  order,  that  the  Pleas  felt  the  obligation  of  the 
requirement  of  the  section,  and  that,  in  the  exercise  of  the 
discretion  which  was  vested  in  them,  they  adjudged  that  the 
caused  urged  against  those  surveyors  was  sufficient  to  require 
their  rejection. 

The  justice  of  the  Supreme  Court  states,  in  his  opinion, 
that  the  reason  for  the  exclusion  was  not  denied  or  contro- 
verted in  any  way,  and  was  clearly  proved. 

It  is  sufficient  to  say,  that  on  a  writ  of  error,  which  brings 
up  the  record  from  the  Supreme  Court,  we  cannot  look  to 
admissions  made  on  the  arguments  below,  but  must  be 
governed  by  what  appears  with  the  return.  If  the  parties 
meant  to  present  the  case  upon  facts  which  neither  side  dis- 
puted, they  should  have  made  out  in  writing,  in  the  court 


546       COURT  OF  ERRORS  AND  APPEALS. 

Parsell  v.  State,  Mann  et  al.,  pros. 

below,  a  state  of  their  case,  and  have  signed  and  filed  the 
same,  so  that  it  would  have  come  into  this  court  with  the 
record.  It  would  be  dangerous  for  a  court  of  error  to  base 
their  judgment  in  the  last  resort,  upon  any  matter  not  appa- 
rent upon  the  record  and  files  of  the  court  below,  but  resting 
only  in  pais. 

The  proof  u{>on  the  point  is  found  in  the  testimony  of 
Leonard  Bunn,  esq.,  who  was  one  of  the  judges  of  the  Court 
of  Common  Pleas.  This  deposition  was  taken  more  than 
eighteen  months  after  the  order  of  appointment  was  made. 
The  case  branches  again  at  this  point.  Should  the  Supreme 
Court  review  the  discretion  which  the  Common  Pleas  declare, 
in  their  order,  that  they  exercised?  If  not,  the  case  must 
end  here ;  if  they  ought  to  exercise  that  power,  was  the  fact 
of  the  cause  of  the  exclusion  of  the  surveyors  of  Bridgewater 
properly  before  that  court? 

It  is  a  well  recognized  rule  in  practice,  that  a  court  of  review 
will  not  examine  into  a  matter  confided  to  the  discretion  of  an 
inferior  tribunal,  which  has  exercised  its  discretion  upon  it. 

In  Wright  v.  Green,  6  Halst.  334,  the  justice  said,  the 
law  confides  "the  exclusive  order  and  directions  in  such 
OB868  (referring  to  discharging  bail,  &e.,)  to  the  legal  discre- 
tion and  judgment  of  the  court  having  jurisdiction  over  the 
subject  matter;  and  courts  of  error  will  not  deem  themselves 
at  liberty  to  review  the  same."  U|M>n  another  branch  of  the 
same  case  he  says:  "So  much  of  discretion  is  involved  in 
the  opening  or  setting  aside  a  judgment  that,  as  in  other 
analogous  cases  where,  tlione  circwmstanccft,  which  properly 
govern  and  guide  the  determination  of  the  court,  are  scarcely 
suttcoptihlc  of  being  fully  and  entirely  exhibited  on  paper,  so 
as  to  become  a  subject  of  review,  the  law  has  wisely  resolved, 
there  w  less  of  evil  in  leaving  uneorrected,  errors  which 
occasionally  occur,  than  in  attempting  to  correct  them."  In 
G Hie/and  v.  Itnpi>lfymt  3  Green  145,  the  Chief  Justice  said  : 
that  the  court,  u|K>n  a  writ  of  error,  will  not  draw  into  dis- 
cuHgion  such  orders  as  have  been  made  upon  application  to 
the  mere  discretion  of  the  court  In-low.  In  the  case  of  The 


JUNE  TERM,  1863.  547 

Parsell  v.  State,  Mann  et  al.,  pros. 

Stale  v.  Vanbuskirk  and  others,  1  Zab.  87,  one  reason  relied 
on  for  setting  aside  the  return  was,  that  the  surveyor  of  the 
township  had  not  been  appointed.  The  Chief  Justice  said : 
the  law  imposes  no  other  restriction  upon  the  discretion  of  the 
court  than  is  contained  in  the  clause  cited.  The  order  of  the 
court  explicitly  states  that  the  appointment  was  made,  regard 
having  been  had  to  the  appointment  of  the  surveyors  of  the 
townships  where  the  new  road  is  applied  for  to  be  laid  out ; 
"  the  requirement  *of  the  statute  is  in  every  respect  fully 
satisfied." 

In  1  Zab.  344,  The  State  v.  Bergen  and  others,  Justice 
Whitehead  said,  it  was  sufficient  for  the  court,  in  their  ap- 
pointment of  surveyors,  to  certify  that  regard  was  had,  &c., 
and  that  the  reasons  why  the  surveyors  of  the  township  where 
the  road  is  applied  for  were  passed  by,  need  not  be  particu- 
larly assigned.  In  1  Dutcher  233,  The  State  v.  Vanderveer, 
the  objection  made  to  the  road  was,  that  one  of  the  surveyors 
was  disqualified  to  act  on  account  of  expressing  an  opinion. 
The  Supreme  Court  said,  the  only  positive  disqualification  in 
the  act  was  being  a  landholder  on  the  line  of  the  road.  Every 
other  unfitness  is  referred  to  the  discretion  of  the  court  making 
the  appointment.  If  the  objection  was  made  at  the  time  of 
the  appointment,  the  court  exercised  its  discretion,  and  we 
have  no  right  to  interfere. 

On  a  review  of  the  last  case  in  this  court,  the  judgment 
of  the  Supreme  Court  was  unanimously  affirmed.  A  remark, 
made  by  the  judge  who  read  the  opinion,  "that  if  the  Com- 
mon Pleas,  in  the  appointment  of  surveyors,  should  in  their 
discretion  act  capriciously,  in  violation  of  settled  principles 
of  law  and  equity,  the  superintending  tribunal  has  power  to 
review  and  correct  their  proceedings,"  does  not  aid  the  plain- 
tiffs in  error;  because  the  order  of  the  Pleas  in  this  case  is 
not  alleged  to  be  against  well  settled  principles,  but  in  con- 
travention of  a  requirement  of  the  statute,  upon  which  they 
had  a  right,  by  the  same  statute,  to  adjudicate,  and  to  appoint 
or  to  reject  in  their  discretion.  The  remarks  were  followed 
with  these  sentences :  "  Our  road  act  contemplates  the  exer- 


548       COURT  OF  ERRORS  AND  APPEALS. 


Parsell  v.  State,  Mann  et  al.,  pros. 


cise  of  a  sound  judicial  discretion,  which  should  be  guided  by 
the  nature  of  the  circumstances  and  the  acknowledged  rules 
of  proceeding  in  such  cases." 

Who  can  say,  from  an  examination  of  the  order  of  appoint- 
ment, which  forms  a  part  of  the  present  record,  that  the 
Common  Pleas  of  Somerset  did  not  exercise  their  discretion 
precisely  in  the  manner  directed  by  this  court?  Who  can 
put  his  finger  upon  the  slightest  indication  of  capriciousness? 
If  it  legally  appears  to  the  Supreme  Court,  in  a  case  before 
them,  that  the  judges  of  the  Court  of  Common  Pleas  refused 
to  exercise  the  discretion  required  by  the  statute,  they  will 
review  and  set  aside  their  action.  In  the  present  case,  I  am 
decidedly  of  opinion  that  the  court  should  not  have  gone  be- 
hind the  language  of  the  order  of  appointment,  and  inquired 
for  reasons,  and  applied  their  own  discretion  for  reforming 
the  discretion  of  the  Common  Pleas. 

The  3d  section  of  the  road  act  provides,  that  when  a  road 
is  required  to  be  laid  out,  altered,  or  vacated  on  any  part  of 
the  line  between  two  counties,  or  a  part  in  one  county,  and  a 
j>art  in  another,  application  for  the  appointment  of  surveyors 
shall  be  made  to  the  Supreme  Court,  who  sliall  appoint  three 
surveyors  in  each  of  the  counties,  having  a  regard  to  the 
appointment  of  the  surveyors  of  those  townships  where  the 
road  is  to  be  laid,  subject  to  the  restrictions  imposed  in  the 
2d  section.  Snp|>ose  that  parties  interested  in  such  an  appli- 
cation, should  be  dissatisfied  with  a  conclusion  to  which  that 
court  should  come,  in  the  exercise  of  the  same  discretion 
which  i«  confided  to  the  Common  Pleas,  how  could  that  dis- 
cretion be  reviewed  ?  A  writ  of  error  would  not  lie  to  the 
order.  No  cerfiorari  issues  out  of  this  court,  except  to  bring 
up  out-branches  of  the  record  on  allegation  of  diminution. 
If  an  exercise  of  discretion  by  the  Supreme  Court  cannot  be 
considered  in  a  superior  tribunal,  is  it  cxj>edicnt  for  them  to 
Htretch  their  .su|x>rintemling  power  for  the  purj>ose  of  ex- 
amining into  an  exercise  of  the  discretion  of  the  Common 
Pl«-.w  u|*m  a  like  subject  matter?  I  think  that  more  mis- 
chirf  would  flow  from  such  a  practice,  than  can  result  from 


JUNE  TERM,  1863.  549 

Parsell  v.  State,  Mann  et  al.,  pros. 

affirming  the  orders  and  proceeding  had  in  the  Common 
Pleas.  The  \proper  construction  of  the  act  will  be  given  by 
this  court,  and  if  the  road  in  question  is  unnecessary  and 
injurious,  an  application  can  be  made  for  the  appointment  of 
surveyors  to  vacate  it.  As  yet  the  township  has  not  been 
subjected  to  expense.  If  the  decision  of  the  Supreme  Court 
should  be  affirmed,  its  effect  might  reach  to  and  disturb  many 
roads  laid  out  since  the  act  of  1850,  upon  which  expenditures 
;have  been  made,  and  much  work  been  done. 

But  if  the  Supreme  Court  did  right  in  going  behind  the 
order  of  appointment,  was  the  fact  upon  which  they  acted 
made  manifest  to  them  according  to  the  settled  rules  and 
practice  of  that  court?  And  did  the  fact,  which  they  ob- 
tained through  the  affidavit  of  Judge  Bunn,  show  conclu- 
sively the  want  of  an  exercise  of  discretion  and  the  adoption 
•of  an  inflexible  rule?  Who  will  judicially  declare  that  it 
was  not  discreet  in  the  Common  Pleas,  under  the  circum- 
stances, if  they  saw  fit  so  to  do,  to  follow  what  they  under- 
stood to  be  the  proper  mode  of  proceeding,  as  adopted  by  the 
Supreme  Court,  rather  than  to  have  opposed  it  by  their  pri- 
vate judgments,  and  thereby,  perhaps,  have  subjected  their 
order  to  review  for  contumacy  ?  In  road  matters,  the  Com- 
mon Pleas  do  not  act  according  to  the  course  of  the  common 
law,  but  in  pursuance  of  a  statute  which  marks  out  the  line 
of  their  proceedings.  They  act  upon  the  same  species  of 
authority  as  they  do,  in  taking  cognizance  of  appeals  from 
the  courts  for  the  trial  of  small  causes.  The  rule  which  the 
Supreme  Court  has  established,  by  long  and  uniform  prac- 
tice, for  obtaining  information  from  the  inferior  tribunals 
respecting  their  proceeding  upon  the  trial  of  an  appeal, 
should  prevail  with  equal  propriety  in  matters  of  roads. 

That  rule  was  stated  by  Justice  Potts,  in  Moore  v.  Hamil- 
ton, 4  Zab.  532.  Premising  that,  on  the  trial  of  appeals, 
the  Common  Pleas  act  upon  a  special  statutory  jurisdiction, 
he  says,  that ~  the  proper  course  to  get  the  facts  before  the 
court  above  on  oertiorari,  is  to  take  a  rule  upon  the  court 
below  to  certify  what  the  facts  were  in  the  first  instance,  and 


550       COURT  OF  ERRORS  AND  APPEALS. 

Parsell  v.  State,  Mann  et  al.,  pros. 

then,  if  the  court  fail  to  certify,  resort  may  l>e  had  to  a  rule 
for  affidavits.  He  cites  Scott  v.  Realty,  3  Zab.  259.  A  refer- 
ence to  that  case  shows  the  rule  in  more  specific  language. 
There  was  a  cetiiorari  from  the  Circuit  Court  to  the  Common 
Pleas,  and  another  from  the  Supreme  to  the  Circuit  Court. . 
The  Chief  Justice,  among  other  things,  said,  in  his  opinion, 
"that  the  facts  before  the  Common  Pleas  on  the  appeal  was 
a  matter  to  be  shown  before  the  Circuit  Court.  No  state  of 
the  case  is  agreed  on  or  settled  by  the  court  below;  no  rule 
was  taken  u|X>n  that  court  to  certify  what  the  facts  were;  but 
the  plaintiff,  in  the  first  instance,  resorts  to  affidavits  to  prove 
what  evidence  was  offered  on  the  trial  of  the  appeal."  This, 
he  adds,  is  a  violation  not  only  of  the  long  settled  practice 
of  the  court,  but  of  the  most  obrious  dictates  of  reason  and 
propriety.  If  no  state  of  the  case  be  agreed  on,  the  proper 
practice  is,  in  the  first  instance,  to  call  upon  the  court  to 
return  what  the  facts  were.  Their  return  is  conclusive.  If 
the  court  below  fail  to  make  a  return  of  the  facts,  then,  from 
the  necessity  of  the  case,  and  then  only,  can  resort  l>e  had 
to  affidavits."  The  fact,  that  the  testimony  taken  in  this 
ease  was  taken  under  a  rule  of  the  Supreme  Court,  does  not 
aid  the  defendants'  case.  Such  rules  are  frequently  entered 
in  the  minutes,  without  specially  directing  the  attention  of 
the  court  to  the  matter.  This  rule  is  general,  and  doubtless 
was  entered  without  notice  to  the  other  party.  It  simply 
orders  "  that  the  parties  have  leave  to  take  affidavits  to  l>e 
used  on  the  argument,"  on  motion  of  the  attorney  for  the 
plaintiff*,  in  Supreme  Court.  In  the  case  last  cited,  3  Zab. 
259,  the  court  further  said  :  "  a  rule  to  take  affidavits  author- 
izes the  taking  only  of  legal  and  competent  evidence,"  and 
the  rule  should  specify  the  purposes  for  which  the  affidavits 
are  to  be  taken.  This  rule,  therefore,  was  improvidently 
entered,  Ixjeause  it  is  without  specifications,  and  was  entered 
before  any  rule  was  taken  upon  the  Common  Pleas  to  certify 
the  reason  why  they  rejected  the  surveyors  of  the  township 
of  Bridge  water. 

If  the  rule  or  practice  on   this  subject,  which   has  been 


JUNE  TERM,  1863.  *  551 

Parsell  v.  State,  Mann  et  al.,  pros. 

pursued  by  the  Supreme  Court,  shall  now  be  approved  and 
established  by  this  court,  the  subject  will  be  set  at  rest,  and 
an  uniformity  of  proceedings  hereafter  be  secured  which  is 
"consonant  with  reason  and  propriety."  It  is  unnecessary 
to  consume  time  in  relation  to  the  sufficiency  of  the  affi- 
davits. 

The  Court  of  Common  Pleas  is  composed  of  three  county 
judges  and  a  justice  of  the  Supreme  Court,  all  of  whom  are 
presumed  to  be  present  when  the  court  is  open  for  business, 
unless  the  contrary  appears.  No  reference  is  made  in  the  tes- 
timony to  either  of  the  other  judges;  but  one  was  relied  upon 
as  sufficient  to  express  the  facts  and  considerations  which 
moved  his  brethren  in  deciding  a  question  of  pure  legal  dis- 
cretion. I  am  clearly  of  opinion  that  the  fact  was  not  made 
manifest  to  the  Supreme  Court  in  a  proper  legal  form ;  aud 
also,  that  the  deposition  of  Judge  Bunn,  standing  alone,  is 
insufficient  to  contradict  the  language  used  by  the  whole 
court,  on  the  face  of  the  order  of  appointment. 

The  second  complaint  made  in  the  Supreme  Court,  referred 
to  the  assessment  of  damages  to  the  land  owners.  The  return 
does  not  show  that  assessments  were  made  to  any  persons 
who  were  applicants  in  the  petition  presented  to  the  Court 
of  Common  Pleas.  That  was  tfie  only  guide  which  the  sur- 
veyors could  have,  and  they  do  not  appear  to  have  .disre- 
garded it. 

The  fourth  reason  relied  on  in  the  Supreme  Court  was, 
that  the  surveyors  acted  on  an  erroneous  principle  in  laying 
out  the  road  ;  because  it  is  said,  that  if  the  Central  Railroad 
Company  had  done  their  duty  in  making  proper  crossings 
where  the  track  intersects  the  common  road,  the  road  in 
question  could  not  have  been  required.  The  railroad  was 
constructed  over  twenty  years  ago,  when  the  danger  and  in- 
convenience complained  of  was  created.  Having  borne  the 
same  for  tjiat  length  of  time,  the  inhabitants  of  the  county 
asked  to  be  relieved  from  it  by  a  cross-road.  The  question 
for  the  surveyors  to  settle  was,  whether,  when  this  road  was 
applied  for,  it  was  necessary.  They  went  upon  the  ground, 


552-  COURT  OF  ERRORS  AND  APPEALS. 

Graham  r.  Houghtalin. 

and  adjudicated  that  it  was  necessary.  The  cause  of  the  neces- 
sity they  had  nothing  to  do  with.  The  proposition  made  by 
the  counsel  for  the  defendants  in  error  is  a  broad  and  far- 
reaching  one,  and  perhaps  ought  to  be  examined ;  but  I  do 
not  think  the  present  occasion  is  the  time  for  doing  it.  The 
duty  which  it  urges,  rests  upon  every  railroad  in  the  state  of 
any  magnitude,  and  a  requirement  which  enters  into  the  legality 
of  their  crossings  of  highways  is  too  important  to  be  collater- 
ally settled,  upon  an  application  for  a  local  neighborhood  road, 
in  which  the  railroad  company  is  not  a  party.  The  judgment 
of  the  Supreme  Court  should  be  reversed. 

For  reversal — Judges  COMBS,  CORNELISOX,  ELMER,  FORT, 
GREEN,  OGDEN,  VREDENBURQH,  WALES,  WOOD.    9. 

For  affirmance — None. 
CITED  in  State,  Winani,  pros.,  \.  Crane,  7  Vroom  401. 


ARCHIBALD  GRAHAM  v.  JANE  HOUGHTALIN  ET  AL. 

1.  A  deed  was  made,  on  the  31st  August,  1810,  by  G.  G.  to  D.  and  E. 
his  wife,  conveying  to  the  said  D.  and  wife  the  premises  in  question 
for  and  during  their  natural  lives,  and  the  life  of  the  survivor  of  them, 
and  after  their  decease,  to  the  children  of  the  said  D.  by  his  said  wife, 
and  to  their  heirs  and  assigns  for  ever. 

2.  Held,  that  the  remainder  vested  in  the  children  living  at  the  date  of 
the  deed,  subject  to  ojien  to  let  in  after-born  children. 

3.  On  the  15th  of  June,  1818,  the  said  D.  and  his  wife  were  still  living, 
and  had  then  six  minor  children,  and  afterwards  had  two  more  born. 
On  the  said  15lh  June,  D.,  a«  the  guardian  by  nature  of  his  children, 
obtained  a  decree  of  the  Orphans  Court  of  Knsex  to  sell  the  said  lands 
for  the  support  of  said  minors. 

4.  In  an  action  of  ejectment,  brought   by  the  children  against  the  pur- 
chaser, after  the  death  of  D.  and  wife,  held  that  the  two  children  born 
after  the  sale  were  not  affected  by  it. 

5.  Held  further,  that  the  other  children,  being  minors,  and  not  orphans, 
at  the  time  of  the  decree  for  caU-  by  the  Orphans  Court,  were  not 
bound  by  the  derm* ;  that  the  Orphan*  Court  had  no  jurisdiction  over 


JUNE  TERM,  1863.  553 

Graham  v.  Houghtalin. 

the  subject  matter,  and  that  a  sale  under  the  decree  was  void,  and  con- 
veyed no  title.  . 

6.  By  the  term  guardian,  in  the  6th  section  of  the  act  of  1799,  Rev.  Laws, 
is  meant  such  guardians  as  are  named  in  the  previous  sections  of  the 
act. 

7.  A  minor  who  is  seized  of  a  remainder  in  fee  expectant  upon  the  death 
of  his  father,  who  has  a  life  estate  therein,  cannot  be  a  ward  in  socage, 
nor  can  his  father  be  his  guardian  in  socage. 

8.  The  father,  who  is  guardian  by  nature  only,  and  not  appointed  by  any 
court  or  competent  authority,  is  not  a  guardian  within  the  meaning  of 
the  phrase  "  other  guardian,"  named  in  the  3d  section  of  the  said  act 
of  1799  respecting  guardians. 

9.  A  father,  as  guardian  by  nature,  is  not  appointed  ;  it  results  to  him  by 
operation  of  law. 

10.   A  guardian  by  nature  is  guardian  of  the  person  only,  and  not  of  the 
estate. 


Error  to  Supreme  Court. 

This  was  an  action  of  ejectment,  brought  by  the  defendants 
in  error  against  the  plaintiff,  in  error,  in  the  Supreme  Court, 
to  recover  possession  of  a  parcel  of  land,  containing  9.83 
acres,  in  the  city  of  Paterson.  The  suit  was  commenced  on 
the  30th  November,  1861.  The  defendant  pleaded  the  gene- 
ral issue,  and  the  cause  was  tried  in  April,  1862,  at  the  Cir- 
cuit Court  in  the  county  of  Passaic,  before  his  Honor  Justice 
Ogden. 

The  plaintiff  offered  in  evidence — 

1.  A  deed,  from  Richard  Van  Gieson  and  Jane  his  wife, 
dated  31st  August,  1810,  to  Henry  Doremus  and  Elizabeth 
Doremus  his  wife,  (the  said  Elizabeth  being  a  daughter  of  the 
said  grantors)  by  which  the  said  grantors,  for  and  in  consid- 
eration of  the  love  they  have  and  bear  for  and  unto  their 
daughter  Elizabeth,  wife  of  the  said  Henry  G.  Doremus,  and 
for  the  consideration  of  one  dollar,  granted  and  sold  to  the 
said  Henry  and  Elizabeth  Doremus,  for  and  during  the  term 
of  their  natural  life  and  the  life  of  the  survivor  of  them,  and 
after  their  decease  to  the  children  of  the  said  Henry  G.  Dore- 
mus by  his  said  wife  Elizabeth,  and  to  their  heirs  and  assigns 
for  ever,  certain  parcels  of  land,  including  the  premises  in 


554       COURT  OF  ERRORS  AND  APPEALS. 

Graham  v.  Houghtalin. 

question.  The  habendum  clause  in  the  deed  corresponded 
with  the  term  of  the  grant.  This  deed  was  duly  acknow- 
ledged and  recorded. 

The  plaintiff  then  proved — 

That  Henry  G.  Doremus  died  in  1837,  and  Elizabeth  Do- 
remus died  in  1861,  and  that  all  the  plaintiffs,  except  James 
Fox,  were  children  of  the  said  Henry  and  Elizabeth,  five  of 
them  having  been  born  after  the  execution  of  said  deed,  and 
that  the  defendant  was  in  possession  of  the  premises. 

The  defendant  offered  in  evidence — 

1.  An  order  of  the  Orphans  Court  of  Essex  county,  made 
June,  1818,  authorizing  Henry  G.  Doremus,  as  guardian  of 
the  persons  and  estates  of  Jane,  Heury,  Josiah,  Eliza,  George, 
and  Richard  Doremus,  his  children,  minors  under  the  age  of 
twenty-one  years,  to  sell  all  the  real  estate  of  the  said  infants, 
for  and  towards  their  maintenance  and  education,  they  having 
no  personal  estate,  and  the  rents  and  profits  of  the  said  real 
estate  being  insufficient  to  maintain  them. 

2.  A  certified  copy  of  a  report  of  sale,  made  by  the  guar- 
dian to  Abraham  Ryerson,  of  the  lot  in  question,  on  the  8th 
November,  1819,  for  five  hundred  dollars. 

3.  A  deed  from  said  Henry  G.  Doremus  to  said  Ryerson 
for  said  premises,  dated  December  6th,  1819,  which  deed  sets 
out  the  order  of  the  Orphans  Court,  and   the  sale   made  in 
pursuance  of  it,  and  was  afterwards  acknowledged  and  re- 
corded. 

4.  A  deed  from  Abraham  Ryerson  to  Henry  G.  Doremus, 
for  the  same  premises  in  fee,  for  the  consideration  of  five  hun- 
dred dollars,  dated  December  6th,  1819,  and  recorded  on  the 
7th  of  December. 

5.  A  certified  record  of  a  decree  of  the  Court  of  Chan- 
wry,  on  a  foreclosure  suit  upon  a  mortgage  given   by  said 
Henry  G.  Doremus  to  Aaron  A.  Van  Houten,  for  the  sum  of 
eight  hundred  and  fifty  dollars,  dated  November  17th,  1819, 
in  which  suit  the  said  Aaron  A.  Van  Houten  was  complain- 
ant, and  Henry  G.  Doremus  and  wife  defendants,  and  which 


JUNE  TERM,  1863.  555 

Graham  v.  Houghtalin. 

•decree  bears  date  January  7th,  1821,  and  is  for  the  sum  of 
$919.42,  and  also  a  copy  of  the  execution  issued  on  said  decree. 

6.  A  deed  from  Joseph  T.  Baldwin,  sheriff  of  the  county 
of  Essex,  dated  July  20th,  1821,  to  Daniel  Holsman  for  the 
said  premises,  consideration  $1035.33. 

The  defendant  then  proved  that  he  had  been  in  possession 
of  the  premises,  as  tenant  under  Daniel  Holsman  and  his 
heirs,  since  1832;  that  Holsman,  when  he  bought,  supposed 
he  was  buying  a  good  title;  that  it  was  publicly  known  that 
Henry  G.  Doremtis,  in  addition  to  his  life  estate,  had  got  the 
title  of  the  heirs  by  proceedings  in  the  Orphans  Court ;  that 
-at  the  time  of  the  sale  by  the  guardian,  $500  would  have 
been  considered  a  fair  price  for  the  remainder  expectant  on 
the  death  of  Henry  G.  Doremus  and  his  wife;  that  the  regu- 
larity or  bona  fides  of  the  sale  was  not  called  in  question  until 
many  years  after  it  «was  made,  and  that  the  said  Doremus 
was  poor  and  improvident. 

The  plaintiffs  then  further  offered  in  evidence — 

1.  An  account  of  Henry  G.  Doremus,  guardian  of  Henry, 
Josiah,  Eliza,  George,  Richard,  and  Jane  Doremus,  for  main- 
tenance and  education,  exhibited  to  the  Orphans  Court  of 
Essex  county,  June  15th,  1818,  amounting  to  $1764. 

2.  A  bond  purporting  to  be  a  guardianship  bond  given  by 
Henry  G.  Doremus  and  Helmagh  R.  Van  Houten  to  the  Or- 
dinary of  the  state,  in  the  penal  sum  of  $1250,  dated  June 
15th,  1818,  and  with  a  condition  as  follows:  "The  condition 
of  the   above   obligation  is  such,  that  if  the  above  bound 
Henry  G.  Doremus,  as  father  and  natural  guardian  of  Jane, 
Henry,  Josiah,  Eliza,  George,  and  Richard,  his  children,  shall 
take  due  and  proper  care  of  whatever  property,  whether  real 
or  personal,  of  his  said  children,  which  hath  or  may  come  to 
his  hands,  and  make  no  waste  thereof  or  destruction  therein, 
and  render  to  them,  when  of  full  age,  a  just  and  true  account 
thereof,  and  pay  over  whatever  may  be  in  his  hands,  then 
this  obligation  to  be  void.v 

3.  A  certificate  of  the  surrogate  of  Essex,  dated  1862,  to 
the  effect  that  he  had  searched,  from  1810  to  the  present 


556       COURT  OF  ERRORS  AND  APPEALS. 

Graham  v.  Houglitalin. 

time,  and  could  find  no  other  paper  in  his  office  in  relation  to 
the  guardianship  of  children  of  Henry  G.  Doremus,  nor  any 
order  for  the  appointment  of  a  guardian. 

The  plaintiffs  also  called  witnesses  to  show  that  the  children 
of  said  Doremus,  when  minors,  worked  in  the  mills  at  Pater- 
son  for  wages,  and  earned  money — some  two  or  three  dollars 
a  week, — this  was  between  1815  and  1822. 

The  evidence  having  been  closed,  the  plaintiff's  counsel 
contended — that  the  deed  given  by  Henry  G.  Doremus  to 
Abraham  Ryerson  was  a  nullity,  because  it  did  not  appear  he 
was  guardian  of  his  children,  and  no  order  of  sale  could  be 
made  by  the  Orphans  Court  in  such  case;  that  according  to 
the  evidence,  the  deed  from  Doreraus  to  Ryerson,  and  the 
deed  from  Ryerson  back  again  to  Doremus,  were  fraudulent 
and  void. 

The  defendants'  counsel  contended,  and  called  upon  the 
court  to  charge,  that  the  decree  of  the  Orphans  Court  was 
evidence  of  the  facts  recited  therein,  except  the  fact  of  Henry 
G.  Doremus  being  guardian  of  his  children.  They  also  asked 
the  judge  to  charge  that  none  of  the  children  born  after  the 
execution  of  the  original  deed  from  Van  Gieson  and  wife  to 
Henry  G.  Doremus  and  Elizabeth  his  wife  were  interested  in 
the  remainder  created  by  said  deed.  They  also  called  on  the 
judge  to  charge  that  the  sale  by  the  guardian  could  not  be 
attacked  for  fraud  in  a  trial  at  law,  but  only  in  a  court  of 
equity ;  but  if  he  should  refuse  so  to  charge,  then  they  asked 
him  to  charge,  that  there  was  no  evidence  before  the  jury  from 
which  they  could  infer  fraud  in  said  sale ;  and  at  all  events, 
as  there  was  no  evidence  to  charge  Daniel  Holsman  with  any 
knowledge  of  fraud  in  the  guardian's  sale,  he  was  not  affected 
by  it,  if  any  had  been  committed. 

The  judge  charged  the  jury,  for  the  purposes  of  the  trial, 
that  the  Orphans  Court  had  juri.sdiction  to  make  the  order  of 
sale,  and  that  said  order  could  not  be  attacked  in  this  col- 
lateral way. 

He  further  charged,  that  the  question  of  fraud  in  the  sale 
by  Doremus,  as  guardian,  might  l>e  inquired  of  in  a  trial  at 


JUNE  TERM,  1863.  557 

Graham  ^.  Houghtalin. 

law  for  the  purpose  of  avoiding  such  sale,  and  that  there  was 
evidence  from  which,  if  it  would  sustain  them,  the  jury 
might  infer  that  the  sale  by  Doremus,  as  guardian,  to  Ryer- 
san,  was  a  legal  fraud  upon  the  children,  and  therefore  void 
as  to  them ;  and  that  Holsman  stood  in  no  better  situation 
than  Doremus  did,  but  was  bound  to  inquire  and  ascertain 
the  facts  before  he  purchased.  And  on  the  question  of  fraud, 
the  judge  charged  the  jury,  that  they  had  a  right  to  look  at 
the  fact,  that  the  deeds  from  Doremus  and  Ryerson  were  of 
the  same  date ;  and  that  they  had  a  right  to  look  at  the 
guardian's  account,  as  filed  in  the  Orphans  Court,  and  at 
Doremus'  poverty,  as  an  inducement  for  fraudulent  conduct. 
The  judge  also  charged,  that  all  the  children  of  Henry  G.  Do- 
remus and  Elizabeth  his  wife  were  interested  in  the  remainder 
created  by  the  deed. 

To  the  matters  so  charged,  and  each  of  them,  except  as  to 
the  jurisdiction  of  the  Orphans  Court,  the  defendants'  coun- 
sel excepted,  and  prayed  a  bill  of  exceptions,  which  was 
allowed  and  sealed  accordingly. 

Upon  the  coming  in  of  the  postea,  judgment  for  the  plain- 
tiffs was  entered  upon  the  verdict  found  by  the  jury,  and 
thereupon  the  defendant  brought  his  writ  of  error  into  this 
court,  and  assigned  for  error,  that  the  charge  of  the  judge 
was  erroneous  in  the  several  matters  excepted  to  as  above 
stated. 

For  plaintiff  in  error,  J.  Hopper  and  /.  P.  Bradley. 
For  defendant,  D.  Barkalow  and  A.  8.  Pennine/ton. 

VREDENBURGH,  J.  This  is  an  ejectment,  brought  by  Do- 
remus and  others,  to  recover  a  lot  of  9.83  acres,  in  the  city 
of  Paterson.  The  plaintiffs  claim  title,  under  a  deed  dated 
the  31st  of  August,  1810,  from  Richard  Van  Gieson  to  Henry 
G.  Doremus  and  Elizabeth  his  wife,  whereby  the  grantor 
conveyed  to  the  said  Doremus  and  wife  the  premises  in  ques- 
tion for  and  during  the  term  of  their  natural  life,  and  the 

VOL.  i.  2  M 


558       COURT  OF  ERRORS  AND  APPEALS. 

Graham  r.  Houghtalin. 

life  of  the  survivor  of  them,  and  after  their  decease  to  the 
children  of  the  said  Doremus  by  his  said  wife,  and  to  their 
heirs  and  assigns  for  ever. 

The  plaintiffs  are  the  children  of  the  said  Doremus  and 
wife.  Mrs.  Doreiuus  survived  her  husband,  and  died  in 
1861.  This  gives  a  perfect  pnina  fucie  title  to  the  plaintiffs. 
Although  only  two  of  the  plaintiffs  were  born  at  the  date  of 
this  deed,  yet  it  is  manifest  that  the  deed  vested  the  re- 
mainder in  the  children  then  born,  subject  to  be  opened  at 
the  birth  of  each  succeeding  child,  so  as  to  let  them  in 
equally  as  they  were  born.  The  plaintiffs  therefore,  by 
virtue  of  the  remainder  vested  in  them  by  this  deed,  were 
entitled,  at  the  death  of  their  mother,  in  1861,  to  recover 
the  possession,  unless  the  defendant  shows  a  better  title. 

The  defendant  sets  up,  as  such  better  title,  a  decree  of  the 
Orphans  Court  of  the  county  of  Essex,  dated  on  the  fifteenth 
day  of  June,  1818,  ordering  Henry  G.  Doremus,  the  father 
of  the  plaintiffs,  to  sell  this  laud  for  the  support  of  such  of 
the  plaintiffs  as  were  then  born ;  also  the  proceedings  on  said 
decree,  and  a  sale  and  deed  under  it,  to  the  defendant's 
grantors.  The  question  is,  whether  these  proceedings  in  the 
Orphans  Court,  and  the  sale  and  deed  under  them,  trans- 
ferred the  title  of  the  plaintiffs  to  the  defendant.  As  to  the 
title  of  Rachel  Ann  Fox  and  John  Doremus,  two  of  the 
plaintiffs,  who  were  born  after  this  order  of  the  Orphans 
Court,  it  is  clear  that  their  title  did  not  pas*<,  because  the 
title  of  the  children  who  were  born  before  the  decree  of  the 
Orphans  Court  was  subject  to  be  divested  to  the  extent  that 
there  might  be  ufterborn  children,  and  was  actually  divested 
by  the  birth  of  these  two  children,  and  became  vested,  to 
that  extent  in  them.  The  estate  of  such  afterborn  children 
was  not,  and  could  not  therefore  have  been  affected  by  the 
proceedings  in  the  Orphans  Court,  consequently  the  said 
Rachel  Ann  Fox  and  John  Doremus,  to  the  extent  of  one- 
eighth  each,  are  entitled  to  recover,  even  if  the  proceedings 
and  sale  under  the  Orphans  Court  are  valid. 

The  next  question  i-,  whether  the  other  six-eighths  passed 


JUNE  TERM,  1863.  559 


Graham  v.  Houghtalin. 


by  the  proceedings  in  the  Orphans  Court.  The  first  ques- 
tion raised  by  the  plaintiffs  in  regard  to  these  is,  whether  the 
Orphans  Court  had  jurisdiction  of  the  subject  matter.  This 
decree  of  the  Orphans  Court  is  dated  on  the  15th  of  June, 
1818,  and  recites,  that  whereas  Henry  G.  Doremus,  guardian 
of  the  person  and  estate  of  Jane,  Henry,  Sophia,  Eliza,  George, 
and  Richard  Doremus,  minors,  under  the  age  of  twenty-one, 
hath  satisfactorily  shown  to  the  court  that  the  said  minors 
have  no  personal  estate,  and  that  the  rents,  &c.,  of  the  real 
estate  are  not  sufficient  for  their  maintenance  and  education, 
and  do  therefore,  agreeably  to  the  act  of  the  legislature  in  such 
case  made  and  provided,  further  adjudge  and  decree  that  the 
said  guardian  sell  all  the  real  estate  of  said  infants. 

On  the  7th  December,  1819,  the  guardian  reported  that, 
in  pursuance  of  said  order,  he  had  sold  the  premises  in  ques- 
tion, for  $500,  to  Abraham  Ryerson,  under  whom  the  de- 
fendant held.  Had  the  Orphans  Court  of  the  county  of 
Essex,  on  the  15th  day  of  June,  1818,  any  power  to  order 
this  sale?  Had  they  jurisdiction  over  the  subject  matter? 
The  subject  matter  is  the  sale  of  the  real  estate,  not  of  or- 
phans, but  of  the  minor  children  of  Henry  G.  Doremus. 
The  authority  under  which  it  is  contended  that  the  Orphans 
Court  had  power  to  sell  these  lands,  in  the  sixth  section  of 
the  act,  passed  on  the  first  day  of  February,  1799,  Pat. 
Laws  347,  which  was  the  act  in  force  when  these  proceed- 
ings in  the  Orphans  Court  were  had.  This  section  reads  as 
follows :  "  That  if  the  personal  estate,  and  rents  and  profits 
of  the  real  estate,  be  not  sufficient  for  the  maintenance  and 
education  of  the  ward,  the  Orphans  Court  of  the  proper 
county,  on  full  investigation  thereof,  may  from  time  to  time 
order  the  guardian  to  sell  such  parts  of  the  ward's  lands, 
tenements,  hereditaments,  and  real  estate  as  they  shall  direct 
and  judge  adequate  for  his  or  her  maintenance  and  educa- 
tion." So  that  it  will  be  perceived  that  the  act  did  not  give 
power  to  the  Orphans  Court  to  sell  the  lands  of  everybody, 
but  only  the  lands  of  wards  by  guardians.  Were  the  plain- 


560       COURT  OF  ERRORS  AND  APPEALS. 

Graham  v.  Houghtalin. 

tiffs,  when  these  proceedings  were  had,  wards  within  the  mean- 
ing of  this  act  ?  If  they  were  not,  the  Orphans  Court  had  no 
jurisdiction  whatever  of  the  subject  matter. 
The  act  is  entitled  "  an  act  relative  to  guardians." 
It  has  never  been  supposed,  by  anybody,  that  this  act  was 
intended  to  embrace  all  kinds  of  guardians  or  all  kinds  of 
wards;  that  it  embraced  guardians  ad  litem,  guardians  for 
nurture,  or  guardians  for  lunatics  or  idiots;  nor  were  the 
lands  of  such  wards  ever  attempted  to  be  sold  under  it. 
When  guardians  and  wards  were  spoken  of  in  common  par- 
lance, the  parties  meant  guardians  appointed  by  the  Ordinary 
and  Orphans  Court  as  his  wards.  However  obtained,  the 
Ordinary,  long  before-  this  act  was  passed,  had  exercised  the 
power  of  appointing  guardians  of  orphans,  but  his  power  was 
confined  to  that;  he  never  pretended  to  interfere  with  the 
property  or  custody  of  infants  who  were  not  orphans.  The 
ecclesiastical  courts  of  England  never  attempted  to  interfere 
with  infants  who  were  not  orphans,  either  as  to  their  persons 
or  estates;  and  if  they  had,  they  would  very  soon  have  found 
themselves  brought  up  in  the  Court  of  Chancery.  But  in  this 
state,  the  Ordinary  always  exercised  jurisdiction  over  orphans, 
so  far  as  to  appoint  guardians  over  their  persons  and  estates, 
and  to  call  such  guardians  to  account  and  settlement. 

At  the  time  of  the  passage  of  this  act  in  1799,  the  Ordi- 
nary, in  analogy  to  the  ecclesiastical  courts  of  England,  had 
jurisdiction  over  the  probate  of  wills,  granting  letters  of  ad- 
ministration and  the  settlement  of  accounts  and  orders  of 
distribution,  and  the  power,  however  obtained,  as  we  have 
before  stated,  over  the  persons  and  estates  of  orphans. 
These  were  cognate  subjects,  relating  to  the  estates  of  de- 
ceased |K;n-on8;  but  the  estate  of  a  minor  who  was  not  an 
orphan  was  a  subject  altogether  foreign  to  the  jurisdiction  of 
the  ecclesiastical  courts  of  England,  as  well  as  to  the  juris- 
diction of  the  Ordinary  here.  As  to  the  minor  who  was  not 
an  orphan,  his  rights  were  always,  in  England  as  well  as  in 
this  state,  under  the  BUpervision  of  chancery  alone.  Thia 


JUNE  TERM,  1863.  561 

Graham  v.  Houghtalin. 

being  the  condition  of  the  law  in  this  regard,  at  and  fora 
long  time  before  this  statute  relating  to  guardians  was  passed 
in  1799,  let  us  see  what  legislation  had  been  had  affecting 
this  subject.  The  first  legislation  in  this  state  affecting  this 
matter  was  the  act  of  1784.  At  this  time  it  was  inconve- 
nient and  unsatisfactory  for  the  people  to  be  obliged  to  settle 
their  accounts,  as  executors,  administrators,  and  guardians, 
in  the  Prerogative  Court;  and  this  act  of  1784  was  passed, 
not  to  include  in  its  operations,  matters  of  jurisdiction  not 
before  vested  in  the  Ordinary,  but  to  divide  his  jurisdiction 
between  him  and  the  Orphans  Court,  in  order  to  afford 
greater  facilities  of  doing  it.  The  first  mention  of  an  Or- 
phans Court  in  this  state  is  the  said  act  of  the  16th  Decem- 
ber, 1784.  Pat.  Laws  135.  The  act  is  entitled  "an  act  to 
ascertain  the  power  and  authority  of  the  Ordinary  and  his 
surrogates,  to  regulate  the  jurisdiction  of  the  Prerogative 
Court,  and  to  establish  an  Orphans  Court  in  the  several 
counties  of  this  state."  The  preamble  reads  as  follows : 
"  Whereas,  it  is  necessary  that  the  power  and  authority  of 
the  Ordinary  and  his  surrogates  should  be  defined,  the  juris- 
diction of  the  Prerogative  Court  regulated,  and  an  Orphans 
Court  established  in  the  several  counties  of  this  state — there- 
fore be  it  enacted,  that  from  and  after  the  passing  of  this 
act,  the  authority  of  the*  Ordinary  shall  extend  only  to  the 
granting  of  probates  of  wills,  letters  of  administration,  let- 
ters of  guardianship,  and  marriage  licenses,  and  to  the  hear- 
ing and  finally  determining  all  disputes  that  rnay  arise 
thereon."  It  then  prescribes  the  time  of  holding  the  Pre- 
rogative Court.  The  act  then  enacts,  that  there  shall  be  an 
Orphans  Court  in  each  county,  which  shall  hear  all  disputes 
respecting  the  existence  of  wills,  the  fairness  of  inventories, 
the  right  of  administration,  and  the  allowance  of  accounts 
-of  executors,  administrators,  guardians,  and  trustees,  audited 
and  stated  by  the  surrogate,  and  such  other  powers  as  are 
given  by  the  act.  It  is  apparent,  from  this  act,  that  by  it, 
the  legislature  did  not  intend  to  give  to  the  Ordinary  or  the 
Orphans  Court  jurisdiction  over  classes  of  individuals  over 


562       COURT  OF  ERRORS  AND  APPEALS. 

Graham  v.  Houghtalin. 

which  the  Ordinary  had  not  jurisdiction  before,  but  to  di- 
vide that  power  between  the  Ordinary  and  the  Orphans 
Court.  It  limited  the  power  of  the  Ordinary  over  certain 
matters,  which  it  had  previously,  and  gave  it  to  the  Orphans 
Court,  with  right  of  appeal.  But  the  two  courts,  together, 
had  jurisdiction  over  the  same  classes  of  individuals  alter 
the  act,  that  the  Ordinary  had  before.  The  name  and  idea 
of  the  Orphans  Court  were  borrowed  not  from  the  English 
ecclesiastical  courts,  but  from  a  court  called  the  Court  of  Or- 
phans, for  a  long  time  established  in  London  and  some  of 
the  other  large  cities  of  England,  and  which,  as  its  name  im- 
ports, had  jurisdiction  over  the  estates  and  persons  of  or- 
phans only.  So  far  as  regarded  decedents'  estates,  generally, 
the  act  gave  the  Orphans  Court  the  same  jurisdiction  as  the 
Prerogative  Court,  borrowed  from  the  English  ecclesiastical 
courts,  had  over  executors  and  admin istrators;  and  so  far  as 
orphans  were  concerned,  it  gave  the  Orphans  Court  the 
same  jurisdiction  the  Ordinary  had,  and  which,  so  far  as 
the  Orphans  Court  was  concerned,  was  borrowed  from  the 
Court  of  Orphans  of  the  city  of  London ;  but  so  far  as  mi- 
nors who  were  not  orphans  were  concerned,  neither  the  Pre- 
rogative Court  or  Ordinary  in  this  state,  or  the  ecclesiastical 
courts  of  England,  or  the  Orphans  Court  of  the  city  of  I»n- 
don,  hail  power  to  meddle  with  their  ]>crsons  or  estates. 
Minors  who  were  not  orphans,  were  always  foreign  to  the 
power  and  jurisdiction  of  all  these  courts.  It  is  apparent, 
upon  every  line  of  this  statute,  that  when  it  speaks  of 
guardians  and  wards,  it  means  only  guardians  of  orphans  ; 
and  when  it  speaks  of  wards,  it  means  orphans  only.  So 
palpable  is  this,  that  we  find  the  words  minors  and  orphans 
used  as  synonymous  throughout  the  act. 

The  18th  section  of  the  act  of  1784  provides  how  the  let- 
ters of  guardianship  shall  be  obtained  and  issued  by  the  Or- 
dinary, but  it  provides  for  orphans  only;  showing  that 
the  legislature  did  not  understand  that  the  Ordinary  or  the 
Orphans  Court  had  any  jxiwer  over  minors  who  were  not  or- 
phans. The  llth  and  12th  sections  of  the  act  of  1784  au- 
thorized the  court  to  sell  the  lands  of  orphans,  only  for  sup- 


JUNE  TERM,  1863.  563 

Graham  v.  Houghtalin. 

port  and  maintenance.  Such  was  the  condition  of  the  law 
when  this  act  we  are  considering,  of  1799,  was  passed.  Did 
this  act  of  1799  intend  to  extend  the  power  of  the  Orphans 
Court  over  classes  of  individuals  not  before  within  the  juris- 
diction of  either  the  Ordinary  or  the  Orphans  Court,  further 
than  it  is  expressly  named  therein  ?  It  is  entitled  "  an  act 
relative  to  guardians."  If  nothing  had  been  said  in  the  act 
with  respect  to  what  guardians  were  meant,  we  should  infer 
that  it  had  regard  only  to  such  guardians  as  were  referred  to 
in  the  act  of  1784,  viz.  those  of  orphans  and  those  appointed 
by  the  Ordinary  or  the  Orphans  Court. 

Let  us  now  examine  the  language  of  this  act  itself.  It 
was  passed  in  1799.  These  proceedings  for  sale  were  had 
under  it  in  1818.  To  appreciate  the  language  of  the  act 
accurately,  we  must  carry  ourselves  back  to  1799,  live  among 
and  breathe,  as  it  were,  the  air  and  customs  of  that  age. 
The  defendant  contends  that  the  father  is  a  guardian,  and 
his  children  such  wards  as  is  meant  in  the  6th  section  of  the 
act  of  1799.  The  language  of  this  6th  section,  as  we  have 
seen,  is — if  the  rents  of  the  estate  be  not  sufficient  for  the 
maintenance  of  the  wards,  the  court  may  order  the  guar- 
dian to  sell  it.  The  section  doesNnot  say  what  kind  of  ward 
or  guardian  is  meant ;  but  the  presumption  is,  that  this  sec- 
tion means  such  individuals  as  were  the  wards  of  such  guar- 
dians as  had  been  previously  named  in  the  act.  We  must 
therefore,  from  necessity,  resort  to  the  previous  provisions 
of  the  act  to  ascertain  what  kind  of  guardians  and  wards 
are  meant.  The  first  section  provides  that  every  guardian 
appointed  by  will  shall  appear  before  the  Orphans  Court, 
and  give  bond.  But  such  kind  of  a  ward  must  necessarily 
be  an  orphan,  for  no  one  can  create  a  testamentary  guardian 
but  the  father,  and  he  must  be  dead  before  his  will  appoint- 
ing a  guardian  can  go  into  effect.  So  far,  therefore,  as  the 
first  section  of  the  act  is  concerned,  it  clearly  authorizes 
the  sale  of  lands  of  orphan  wards  only.  Let  us  now  ex- 
amine the  second  section  of  the  act.  This  provides  that 
every  court,  or  other  competent  authority  appointing  a  guar- 


564       COURT  OF  ERRORS  AND  APPEALS. 


Graham  v.  Houghtalin. 


dian  shall  take  bond.  But  the  father  was  never  appointed 
by  any  court  or  other  competent  authority,  within  the  mean- 
ing of  tliis  section.  The  comment  authority,  under  which 
the  father  acted  as  the  guardian  of  his  minor  children,  was 
the  broad  seal  of  God  and  nature,  and  it  is  not  to  be  pre- 
sumed that  this  is  the  kind  of  competent  authority  S(K>ken 
of  in  this  section.  The  court  or  other  competent  authority 
spoken  of  in  this  section  is,  obviously,  the  Chancellor,  the 
Orphans  Court,  and  the  Ordinary,  or  his  surrogates.  The 
legislature  use  this  j>eculiar  language,  "court  or  competent 
authority,"  for  two  reasons — 1st,  because,  upon  the  face  of 
the  act  of  1784,  then  in  force,  it  was  doubtful,  in  some  cases, 
whether  the  appointment  was  made  by  the  Orphans  Court  or 
the  Ordinary  ;  and  2d,  because  it  was  doubtful  if  the  Ordi- 
nary and  his  surrogates  might  be  deemed  a  court.  But  the 
father  was  never  appointed  guardian  by  any  court  or  any 
authority  whatever,  and  could  not  have  been  until  the  pas- 
sage of  our  act,  for  the  first  time  in  1843.  Until  then,  the 
jurisdiction  of  all  courts  to  appoint,  even  of  the  Lord  High 
Chancellor  himself,  arose  only  upon  the  death  of  the  father, 
and  in  the  case  of  orphans. 

Let  us  now  proceed  to  examine  the  3d  section  of  this  act, 
and  see  if  that  refers  to  any  other  guardians,  except  those 
of  orphan*.  It  provides  that  every  testamentary  guardian, 
guardian  in  soeage,  or  other  guardian,  shall,  within  three 
months  after  his  acceptance  of  appointment  to  his  office,  de- 
liver an  inventory  and  account  in  the  Orphans  Court.  Now, 
in  the  first  place,  in  the  absence  of  all  language  showing  a 
contrary  intent,  the  presumption  is  that  this  mandate  has 
reference  only  to  the  kind  of  guardians  referred  to  in  the 
first  two  eections — to  only  those  required  by  them  to  give 
Iwnd.  It  i«  the  obvious  intent  of  the  act  to  require  the  Or- 
phans Court  to  take  bond  from  all  kinds  of  guardians,  over 
which  it  intended  to  give  the  Orphans  Court  jurisdiction. 
This  is  manifest,  further,  by  the  hpecial  language  of  the  sec- 
tion. It  Hays,  every  guardian,  within  three  months  after  his 
acceptance  or  appointment  to  his  oftiee,  shall  account,  <&c. 
So  that  the  section  only  speaks  of  guardians  who  accept  of 


JUNE  TERM,  1863.  565 

Graham  v.  Houghtalin. 

or  are  appointed  to  the  office.  Now  this  is  true  of  the  guar- 
dians spoken  of  in  the  first  two  sections ;  the  testamentary 
guardian  is  appointed  by  will,  and  is  not  guardian  until  he 
accepts.  The  guardian  in  socage  accepts,  if  he  sees  fit.  All 
other  guardians  named  in  the  first  two  sections  are  appointed 
by  the  courts.  But  the  father  neither  accepts  or  is  ap- 
pointed as  guardian  of  his  minor  children.  Their  guardian- 
ship is  thrown  upon  him  by  the  mere  operation  of  law,  and 
he  is  not  at  liberty  to  refuse  it;  and  therefore  this  kind  of 
guardianship  is  matter  neither  of  acceptance  or  appointment. 
The  section  speaks  of  guardians,  only,  who  accept  or  are  ap- 
pointed. This  is  true  of  all  kinds  of  guardianship  except 
that  of  the  father  to  his  minor  children,  or  of  guardian  for 
nurture,  but  is  not,  and  cannot  be  true  of  them. 

But  let  us  consider  the  terms  of  this  section  more  specifi- 
cally. The  first  kind  of  guardian  named  in  it,  is  the  testa- 
mentary guardian.  These,  we  have  shown,  must  necessarily 
have  been  guardians  of  orphans  only.  The  next  kind  of 
guardians  named  are  guardians  in  socage.  Was  the  father 
guardian  in  socage?  were  his  children  wards  in  socage? 
These  plaintiffs  were  not  tenants  in  any  sense  of  the  word 
socage  or  otherwise.  They  had  an  %state  in  remainder.  The 
tenants  in  socage,  if  any  there  were,  were  the.  father  and 
mother,  not  the  children.  There  could,  from  the  nature  of 
things,  be  no  guardian  in  socage  while  the  land  was  held  by 
the  tenant  for  life.  Guardianship  in  socage  results  by  reason 
of  the  orphans  being  tenants  in  socage.  These  children 
were  not  tenants ;  they  did  not  hold  the  land,  while  the 
father  and  mother  held  it  by  virtue  of  their  life  estates.  In 
all  tenures  in  socage  those  who  are  bound  to  pay  the  rent  or 
render  the  service  are  and  can  be  the  only  tenants  in  socage. 
One  not  bound  to  pay  the  rent,  or  render  the  stated  services, 
«ould  not,  from  the  nature  of  things,  be  tenant  in  socage. 
The  guardian  in  socage  is  one  who  takes  possession  of  land 
for  the  benefit  of  the  minor.  Where  there  is  no  land  which 
the  guardian  can  take  possession  of  for  the  benefit  of  the 
minor,  there  can  be,  from  the  nature  of  things,  no  guardian 


566       COURT  OF  ERRORS  AND  APPEALS. 

Graham  v.  Houghtalin. 

in  socage.  The  orphan  remainderman  can  be  no  tenant  in- 
socage,  nor  can  any  guardianship  in  sooage  result  therefrom. 
The  guardianship  in  socage  results,  by  operation  of  law,  out 
of  an  existing  tenancy  in  socage,  and  when  the  present  profits 
flow  not  to  the  father,  but  to  the  orphan.  When  the  present 
profits  flow  to  the  father,  he  is  bound  to  pay  the  services, 
and  therefore  he  is  the  tenant  in  socage,  and  not  the  child. 

The  only  remaining  phrase  in  this  act,  that  could  by  pos- 
sibility have  reference  to  the  case  before  the  court,  is  the 
phrase  in  the  3d  section,  "  other  guardian."  This  section 
says,  "testamentary  guardian,  guardian  in  socage,  or  other 
guardian." 

The  defendant  contends  that  the  father  of  these  plaintiffs 
was  guardian  by  nature,  and  therefore  within  the  meaning 
of  the  phrase  "other  guardian."  Mr.  Doremus,  the  father 
of  these  plaintiffs,  was  not,  as  we  have  seen,  either  the  testa- 
mentary guardian  or  the  guardian  in  socage  of  the  plaintiflk 
He  was  not  a  guardian  appointed  by  any  court  or  competent 
authority.  He  was  not  appointed  by  the  Ordinary,  or  the 
Orphans  Court,  or  by  the  Chancellor. 

This  is  manifest  from  two  considerations :  first,  because  in 
his  bond  filed  with  the  Ordinary,  he  calls  himself  the  natural 
guardian,  which  excludes  the  idea  of  appointment;  second, 
because  neither  the  Ordinary,  the  Orphans  Court,  or  the 
Chancellor  himself,  has  any  power  to  ap{x>int  him.  He 
took  as  guardian  by  nature,  not  by  appointment  of  any  tri- 
bunal at  all,  but  it  resulted  to  him  by  oj>eration  of  the  law 
of  nature.  The  father  is  always,  ii|>on  the  birth  of  every 
child,  whether  he  has  property  or  not,  guardian  by  nature. 
But  the  question  here  is,  is  a  guardian  by  nature  such  a 
guardian  a*  is  meant  by  the  phrase  "other  guardian,"  in  the 
3d  section  of  this  act  of  1799. 

Now  it  is  apparent,  from  all  the  sections  of  this  act,  that 
it  had  no  reference  to  any  such  guardian,  any  more  than  to 
guardian  for  nurture,  guardian  arl  Ktem,  guardians  of  idiots 
or  lunatic*,  or  guardians  of  the  public  peace. 

In  the  first  place,  gtumlian  by  nature  is  guardian  of  the 


JUNE  TERM,  1863.  567 


Graham  v.  Houghtalin. 


person  only  of  his  child,  and  not  of  his  estate.  When  a  child, 
in  the  lifetime  of  its  father,  becomes  vested  with  personal 
property,  no  one  is  strictly  entitled  to  take  it  as  a  guardian, 
until  a  guardian  has  been  duly  appointed  by  some  public  au- 
thority. 2  Kent  244;  1  P.  Wms.  285.*  Now  all  the  sec- 
tions, and  every  line  of  this  act  of  1799,  have  reference  only 
to  guardians  who  have  the  custody  of  the  property  of  their 
wards.  The  father  can  neither  be  appointed  by  the  Ordinary 
or  Orphans  Court,  or  give  bond.  Can  we  suppose  that  the 
legislature  should  take  bond  from  a  guardian  who  has  no  cus- 
tody of,  and  is  not  responsible  for  the  property  ?  The  guar- 
dian for  nurture  or  by  nature  might  as  well  give  bond  for  all 
the  property  of  the  ward. 

In  the  next  place,  the  guardians  spoken  of  in  the  act  are 
required  to  file  an  inventory  under  oath.'  Now  this  applies  to 
guardians  by  appointment,  but  how  is  it  possible  for  the 
guardian  who  has  nothing  to  do  with  the  property  to  do  it? 
The  guardian  named  by  the  statute  is  to  account  every  year, 
or  oftener,  for  what  comes  to  his  hands.  How  is  the  guar- 
dian by  nature  to  do  this  when  nothing  comes  at  all  ?  Again, 
section  4th  provides  that  any  guaadian  who  shall  not  deliver 
an  inventory  or  render  an  account,  Hiall  be  made  to  perform 
his  duty  or  be  displaced.  How  is  a  guardian  who  has  nothing 
to  do  with  the  property  to  do  this  ?  or  how  is  the  Ordinary  or 
Orphans  Court  to  displace  the  father  as  guardian  by  nature. 

The  Chancellor  of  England  has  refused  to  displace  'the 
father  when,  as  guardian  in  socage,  he  had  the  custody  of  the 
ward's  socage  lands,  and  said  that  he  would  protect  the  ward 
by  appointing  some  one  to  act  in  the  name  of  the  father,  but 
he  would  not  take  the  child  from  the  custody  of  the  parent  or 
deprive  him  of  his  guardianship  by  nature. 

Again,  in  the  5th  section,  it  is  provided,  that  the  Orphans 
Court,  when  they  shall  have  reason  to  suspect  that  the 
sureties  of  a  guardian  are  in  failing  circumstances,  may 
compel  the  guardian  to  give  additional  security,  and  if  he 
fail  may  displace  him.  It  is  apparent  here  again,  thafc 
the  only  guardians  spoken  of  are  those  appointed  and  who 

*  Dagley  v.  Tolferry. 


568       COURT  OF  ERRORS  AND  APPEALS. 

Graham  v.  Houghtalin. 

give  security.  This  could  not  be  the  father;  for  he  is  not 
appointed,  and  therefore  he  not  only  cannot  give  security,  but 
not  having  the  custody  of  the  estate,  there  is  nothing  for  him 
to  give  security  for.  These  are  all  the  kinds  of  guardians 
named  in  the  act  of  1799,  and  as  none  of  them  can  apply  to 
guardians  by  nature  or  to  their  wards,  it  follows  that  the  Or- 
phans Court  had  no  jwwer  to  order  this  sale. 

But  again,  this  very  6th  section  of  the  act  of  1799  shows 
upon  its  face,  that  it  was  never  intended  to  apply  to  guardians 
by  nature,  but  only  to  orphans  who  have  somebody  for  guar- 
dians, who  are  not  bound  to  support  and  maintain  them. 

The  father,  by  all  laws  human  and  divine,  is  bound  to 
maintain  and  educate  his  child.  This  6th  section,  if  it  in- 
cludes the  father  and  his  minor  children,  would  reverse  the 
whole  order  of  nature  and  all  human  laws  that  were  ever 
before  passed.  It  takes  from  the  father  the  duty  to  maintain 
and  educate  the  child,  and  puts  these  obligations  on  the  child 
itself.  Such  could  not  have  been  the  intent  of  the  law. 
When  the  father  is  dead,  and  the  orphans  are  thrown  on 
strangers,  it  is  right  and  proper  that  the  property  of  the  child 
should  be  used  to  that  end;  and  that  was  all  the  act  of  1799, 
which  was  merely  passed  to  make  more  intelligible  the  act  of 
1784,  was  intended,  in  this  regard,  to  effect. 

There  are  some  cases  reported,  when  the  minor  is  very  rich, 
and  the  father  poor,  where  Chancery  has  allowed  the  parent  a 
reasonable  sum  for  maintenance  out  of  the  child's  estate,  but 
this  is  never  more  than  to  make  his  education  to  agree  with 
his  estate;  but  I  have  found  no  case  where  the  Chancellor 
has  allowed  all  a  minor's  estate  to  be  sold  for  his  education 
when  the  father  is  living.  It  is  against  the  whole  theory 
upon  which  such  allowances  are  made.  The  allowances  are 
made  not  to  free  the  father  from  HUp|x>rting  the  child,  but 
that  the  child  should  be  educated  according  to  his  estate, 
which,  |>erhaps,  the  father  could  not  afford  to  do. 

It  in  apparent  that  the  object  of  the  act  of  1799  was — 1st, 
to  require  twrtamentary  guardians,  when  the  will  docs  not 
provide  otherwise,  to  give  bond  and  account;  2d,  to  require 


JUNE  TERM,  1863.  569 

Graham  v.  Honghtalin. 

all  guardians  appointed  by  public  authority,  whether  the 
Chancellor,  Ordinary,  or  Orphans  Court,  to  give  bond  and 
account;  3d,  to  require  guardians  in  socage  to  account;  4th, 
to  give  the  Orphans  Court  greater  control  over  the  guardians 
thus  named;  5th,  to  prevent  obscurity— the  10th  and  12th 
sections  of  the  act  of  1784,  authorizing  the  sales  of  the  lands 
of  orphans — and  not  to  extend  the  jurisdiction  of  the  Orphans 
Court  over  minors  who  were  not  orphans,  over  a  new  and 
distinct  class  of  individuals,  a  class  entirely  foreign  to  the 
jurisdiction  of  all  cognate  tribunals. 

Such  has,  I  understand,  always  been  the  judicial  con- 
struction of  this  statute.  Thus,  in  April  term,  1829,  in  the 
case  of  GaiTobrant  v.  Sigler,  1  Hoist.  Dig.  507,  §  6,  Chan- 
cellor Williamson  decided  that  the  Orphans  Court  had  no 
power  to  appoint  a  guardian  for  a  minor  during  the  lifetime 
of  the  father,  and  that  the  Prerogative  Court  had  no  such 
power,  nor  could  the  consent  of  the  father  confer  such  juris- 
diction. Now  how  could  this  be  so  if  the  Ordinary  or  Or- 
phans Court  had  jurisdiction  over  minors  who  were  not  or- 
phans ?  Must  not  this  decision  have  been  founded  upon  the 
principle,  that  the  Prerogative  Court  and  the  Orphans  Court 
had  jurisdiction  only  over  orphans  ahd  their  estates,  and  that 
minors  not  orphans,  were  matters  entirely  belonging  to  other 
jurisdictions?  I  regret  much  that  this  opinion  of  Governor 
Williamson  has  not  found  its  way  into  our  reports,  as  I  have 
no  doubt  it  would  have  thrown  much  light  upon  this  obscure 
region  of  the  law,  and  which,  as  Chancellor  Pennington  re- 
marks in  the  matter  of  Coursen's  will,  3  Green's  C.  R.  412, 
presents  a  wilderness  of  perplexity  to  the  practitioner.  The 
legislature,  as  I  understand  it,  have  also  always  put  the  same 
construction  upon  this  act.  This  is  manifest  from  the  act  of 
February  22d,  1843,  Perm.  84,  incorporated  in  the  present 
act  of  1846,  Nix.  Dig.  342,  §  10,*  which  enacts,  "that  if  any 
minor  shall  become  seized  of  real  estate  in  the  lifetime  of  the 
father,  it  shall  be  lawful  for  the  Ordinary  or  for  the  Orphans 
Court  to  appoint  the  father  or  other  suitable  person  guardian 

*  Rev.,  p.  760,  §38. 


570      COURT  OF  ERRORS  AND  APPEALS. 

Graham  v.  Honghtalin. 

of  such  estate."  Does  not  this  show  that  the  legislature  un- 
derstood that,  at  the  first  passage  of  this  act  in  1843,  it  was 
considered  that  the  estates  of  minor  children  who  were  not 
orphans,  were  a  subject  matter  entirely  foreign  to  the  juris- 
diction of  the  Ordinary  and  the  Orphans  Court,  and  that  it 
was  necessary  to  pass  a  special  act  to  give  them  jurisdiction 
over  such  minors'  estates. 

But  again,  so  early  as  1825,  Elmer's  Digest  220,  an  act  was 
passed  entitled,  "  an  act  for  the  protection  of  the  minor  chil- 
dren of  persons  who  abscond  or  absent  themselves  from  this 
state,"  giving  to  the  Orphans  Court  power  to  appoint  guar- 
dians of  such  children  in  the  same  manner  as  guardians  are 
now  apjminted  by  said  court.  This  act,  as  it  were,  defines  the 
act  of  1799  as  not  including  in  the  term  guardian  or  ward,  in 
that  act,  guardian  by  nature  or  a  guardian  of  any  ward  who 
was  not  an  orphan.  The  Circuit  Court  charged  the  jury,  in 
this  case,  that  the  Orphans  Court  had  jurisdiction.  To  this 
the  defendant,  of  course,  did  not  except. 

The  Circuit  Court  further  charged,  that  the  deed  under  this 
order  might  l>e  imj>eached  for  fraud  at  law.  The  jury  found 
for  the  plaintiff  upon  the  question  of  fraud,  and  the  defend- 
ant assigns  this  charge  for  error.  Whether  it  was  erroneous 
or  not,  depends  entirely  upon  the  question,  whether  the  Or- 
phans Court  had  jurisdiction.  If  they  had,  then  it  perhaps 
might  have  been  erroneous  for  the  court  to  charge  that  fraud 
could  be  inquired  of  at  law;  but  if  the  Orphans  Court  had 
no  jurisdiction,  then  it  was  a  matter  wholly  immaterial  whether 
the  transactions  attending  the  sale  were  fraudulent  or  not. 
The  defendant  had  no  more  right  to  recover  in  the  one  case 
than  in  the  other.  If  the  Orphaus  Court  had  no  jurisdiction, 
the  defendant  asked  the  court  to  charge  matter  wholly  imma- 
terial, and  it  was  equally  erroneous  or  equally  lawful  to  charge 
the  one  way  as  the  other.  There  could  be  no  error  in  either 
case. 

I  think  the  judgment  below  should  be  affirmed. 

VAN  DYKE,  J.  I  am  not  able  to  concur  with  the  majority 
of  the  court  in  the  conclusion  to  which  they  come. 


JUNE  TERM,  1863.  571 

Graham  v.  Hough tal  in. 

The  order  of  the  Orphans  Court,  directing  the  guardian  to 
sell  the  real  estate  of  his  wards,  was  held,  in  the  Circuit 
Court,  to  be  a  valid  order.  This  court  determines  to  reverse 
and  set  aside  that  decision,  and  hold  the  order  to  be  a  nul- 
lity, although  no  objection  was  made  at  the  trial  to  the  offer- 
ing of  such  order  in  evidence,  nor  was  any  exception  taken 
to  its  admission  when  received.  And  although  the  defend- 
ants' counsel  seem  to  have  contended,  after  the  evidence  was 
closed,  before  either  the  court  or  the  jury,  or  perhaps  both, 
that  the  Orphans  Court  had  no  power  to  make  such  an  order, 
yet  when  the  court  charged  otherwise,  that  the  order  was 
good  and  valid,  the  plaintiffs  do  not  seem  to  have  taken  any 
exception  thereto,  nor  to  have  asked  for  the  sealing  of  a  bill 
of  the  kind.  The  case  is  now  before  us  on  exceptions  to  the 
charge  of  the  judge,  taken  by  the  defendants'  counsel.  They 
prayed  him  to  charge  in  a  particular  way,  which  he  refused 
to  do,  but  charged  directly  to  the  contrary.  To  this  charging 
the  one  way,  and  refusing  to  charge  the  other,  the  defendants 
cxcepted,  and  obtained  a  bill  of  exceptions.  On  these  excep- 
tions, thus  taken  and  sealed,  the  only  errors  before  us  are 
assigned.  To  these  errors,  so  assigned,  and  to  these  alone, 
by  a  series  of  decisions  quite  unshaken,  I  think  we  are  now 
confined.  How  it  is,  then,  that  this  order  of  the  Orphans 
Court,  which  forms  no  part  of  the  record  proper  in  this  suit, 
which  was  only  a  part  of  the  evidence  in  the  case,  which  was 
received  without  objection,  which  is  in  the  case  as  made,  but 
not  within  any  of  the  exceptions  taken,  and  which  the  party 
against  whom  it  was  received  has  in  no  way  brought  before 
us,  and  on  which  no  error  is  assigned — how  it  is,  I  say,  that 
this  court  can  in  this  way,  and  under  such  circumstances, 
make  the  making  of  this  order  and  its  destruction  the  great 
turning  point  in  the  case,  not  for  the  purpose  of  reversing 
the  judgment  and  setting  aside  the  verdict  which  has  been 
rendered  as  prayed  for,  but  for  the  support  of  both,  and  yet 
for  the  ruin  "of  the  defendants'  case,  is  more,  I  must  confess, 
than  I  can  well  understand.  At  all  events,  I  cannot  concur 
in  such  proceedings.  It  seems  like  the  voluntary  turning 


572       COURT  OF  ERRORS  AND  APPEALS. 

Graham  v.  Houghtalin. 

aside  to  do  that  which  no  one  asks  us  to  do,  and  yet  it  is  that 
which  is  fatal  to  one  of  the  parties  in  the  case. 

But  if  this  order  were  properly  before  us,  I  should  be 
equally  unable  to  concur  in  the  disposition  which  has  been 
made  of  it.  This  judgment  of  the  Orphans  Court  is  probably 
as  solemn  a  one  as  it  had  power  to  render  at  the  time.  We 
are  looking  at  it  from  a  |>oint  of  view  purely  collateral,  and 
under  such  circumstances  it  is  held  by  numerous  authorities, 
and  I  think  not  denied  by  any  one,  that  if  the  court  had 
jurisdiction  over  the  subject  matter,  as  it  is  termed,  with  the 
right  to  make  a  decree  in  that  kind  of  case,  then  the  proceed- 
ings, even  if  clearly  irregular  and  wrong,  cannot  be  ques- 
tioned in  a  collateral  way ;  but  if  corrected  at  all,  it  must  be 
by  a  direct  appeal  to  the  court  itself  where  the  proceedings 
were  had,  to  correct  the  error,  or  by  an  appeal  from  it  to  some 
other  tribunal  having  the  power  to  reverse. 

But  it  is  said  that  the  Orphans  Court,  in  this  case,  had  no 
jurisdiction  over  the  subject  matter.  Now  what  is  meant  by 
a  court  having  jurisdiction  over  a  "subject  matter?"  It 
unquestionably  means  that  the  court  has  the  right  and  power 
to  act,  and  render  a  judgment  or  decree  in  that  particular 
kind  of  case,  or  matter,  or  thing,  either  a  right  one  or  a 
wrong  one.  If  it  has  no  jurisdiction  over  the  subject  matter 
at  all,  then  it  has  no  power  to  render  any  judgment  at  all, 
either  a  right  one  or  a  wrong  one.  If  it  has  the  power  to 
render  a  right  judgment  in  this  kind  of  case,  then  it  has 
jurisdiction  over  the  subject  matter;  and  if  it  should  render 
a  very  wrong  one  in  such  a  case,  it  will  be  held  good  until  it 
is  directly  reversed  or  set  aside.  And  this  i*,  perhujw,  the 
best  test  to  apply  by  way  of  settling  the  question.  If  a  jus- 
tice of  the  peace  should  take  jurisdiction  of,  and  render  judg- 
ment in  an  action  for  slander,  such  judgment,  no  matter  what 
kind  of  a  one  it  might  be,  would  be  absolutely  void,  because 
he  has  no  right  to  give  a  judgment  at  all  of  any  kind.  He 
has  not  jurisdiction  of  the  subject  matter,  that  is  to  say,  he 
has  no  power  to  hear  and  determine  that  kind  of  thing  at 
all,  nor  to  touch  it  at  all.  But  if  he  render  judgment  in  an 


JUNE  TERM,  1863.  573 

Graham  v.  Honghtalin. 

action  of  debt  for  less  than  $100  without  any  evidence  at  all, 
it  will  be  a  wrong  judgment;  but  it  will  be  held  good,  when 
collaterally  drawn  in  question,  until  it  is  reversed,  because 
here  he  has  jurisdiction  over  the  subject  matter,  that  is  to 
say,  he  has  jurisdiction  in  that  kind  of  case  and  over  that 
kind  of  thing,  and  has  the  right  to  give  a  judgment  of  some 
kind,  either  a  right  one  or  a  wrong  one.  He  had  the  right 
to  touch  the  subject. 

These  principles  are  extended  to  almost,  if  not  quite 
every  species  of  tribunal,  and  very  frequently  to  city  au- 
thorities, in  the  passage  of  what  are  termed  judicial  ordi- 
nances; such  ordinances,  I  mean,  as  require  of  the  people,  or 
some  portion  of  them,  to  do  some  affirmative  or  positive  act, 
such  as  the  paving  of  the  streets,  and  the  like.  In  such 
cases,  even  if  the  law  requires  the  city  authorities,  before 
passing  such  ordinance,  to  advertise  their  intention  for  a  cer- 
tain time,  and  in  a  certain  way,  or  that  the  land  owners 
should  first  petition  for  the  passage  of  such  ordinance,  which 
would  seem  to  be  necessary  to  give  the  requisite  jurisdiction ; 
yet  if  they  pass  such  ordinance  without  such  previous  adver- 
tisement or  petition,  if  they  had  the  power  to  pass  that  kind 
of  ordinance,  the  courts  have  invariably  refused  to  interfere 
with  them  in  a  collateral  way,  but  have  held  them  to  be  good 
until  reversed  in  the  proper  manner. 

What,  then,  was  the  subject  matter  which  the  Orphans 
Court,  in  this  case,  was  called  to  act  upon  ?  It  was  simply 
an  application  to  authorize  or  order  a  guardian  to  sell  the 
real  estate  of  his  wards  for  their  maintenance  and  education, 
their  personal  estate  being  insufficient  for  that  purpose.  Now 
can  it  be  that  this  was  not  a  subject  matter  or  kind  of  thing 
over  which  the  Orphans  Court  had  jurisdiction,  which  they 
had  no  right  to  touch  ?  Why,  it  is  the  very  thing  which  the 
6th  section  of  the  act  of  1799  expressly  authorizes  them  to 
do.  That  court  certainly  had  jurisdiction  over  the  applica- 
tion, and  had  the  right  either  to  grant  it  or  refuse  it,  as  the 
facts  and  circumstances  should  require,  and  their  decision 
either  way  miyht  have  been  perfectly  right  and  perfectly 

VOL.  i.  2  N 


574       COURT  OF  ERRORS  AND  APPEAL. 

Graham  v.  Houghtalin. 

legal.  This,  I  think,  cannot  be  controverted.  If,  then,  that 
court  could  lawfully  receive  and  consider  of  such  an  applica- 
tion, and  grant  it,  and  make  the  order  to  sell  under  any  cir- 
cumstances, it  must  have  been  because  they  had  jurisdiction 
over  the  subject  matter,  over  that  kind  of  thing;  for  if  they 
had  no  jurisdiction  over  the  subject  matter,  then  they  had  no 
right  to  touch  the  subject  at  all,  and  could  not  make  a  law- 
ful decision  either  way;  and  if  they  had  jurisdiction  over 
the  subject  matter,  so  that  they  might  lawfully  make  a  de- 
cision either  way,  then  it  is  a  case,  according  to  all  the  au- 
thorities, where  this  court  will  not  hold  their  decision  to  be 
null  and  void,  although  admitted  to  be  erroneous  when 
raised  collaterally. 

The  only  ground  which  I  have  heard  suggested  for  deny- 
ing the  jurisdiction  of  the  Orphans  Court  is,  that  it  does  not 
appear  that  the  jxirson  claiming  to  be  the  guardian  was  such. 
It  certainly  does  not  appear  that  he  was  not;  and  the  rea- 
sons for  insisting  that  lie  was  not  are — first,  because  no  such 
appointment  is  found  on  the  records  of  the  Orphans  Court; 
and  secondly,  because  the  father  could  not  be  the  guardian 
for  such  a  purpose  without  an  appointment,  if  he  could  l>e 
at  all. 

It  was  probably  a  useless  effort  to  search  the  records  of 
the  Orphans  Court  for  such  an  appointment,  as  it  is  sup- 
posed that  that  court  at  that  time  had  no  such  appointing 
power.  They  had  something  to  do  in  such  cases,  but  were 
not  required  to  make  a  record  of  it;  but  their  proceedings 
being  certified  to  the  Ordinary,  he  issued  the  letters  of  guar- 
dianship; consequently  the  finding  of  no  such  record  can 
amount  to  nothing. 

In  1820,  the  |M>wer  of  the  Ordinary  to  appoint  guardians 
was  transferred  to  the  Orphans  Courts  of  the  counties,  and 
yet,  in  1824,  Chancellor  Williamson  is  said  to  have  held, 
that  the  jx>wer  of  the  Orphan*  Court  in  the  apjx»intment  of 
guardians  was  confiiunl  to  appointments  for  orphan  children  ; 
that  an  orphan  was  one  who  was  fatherless,  and  consequently 
that  the  Orphan*  Court  could  not  appoint  a  guardian  for  a 


JUNE  TERM,  1863.  575 

Graham  v.  Houghtalin. 

minor  child  while  his  father  was  living ;  but  he  did  not  de- 
cide, so  far  as  we  can  learn,  that  such  minor  child  could  not 
have  a  guardian,  so  far  at  least  as  his  property  was  con- 
cerned, nor  that  the  father  could  not  be  such  guardian.  So 
far  as  the  guardianship  and  control  of  the  person  of  a  minor 
was  concerned,  unquestionably  the  father  was  the  natural 
guardian :  no  other  was  needed,  and  no  stranger  could  well 
be  appointed  to  that  office  consistently  with  the  relationship 
existing  between  parent  and  child ;  but  so  far  as  the  estate 
of  the  minor  was  concerned,  the  case  was  entirely  different. 
The  father,  to  be  sure,  was  bound  to  support  his  minor  chil- 
dren ;  but  the  father  might  be  a  beggar,  with  a  large  family 
of  children,  each  of  whom  might  have  sufficient  property, 
received  by  devise,  grant,  or  otherwise,  to  support  ,and  edu- 
cate them;  but  without  the  use  of  this  property,  which 
might  be,  like  that  now  before  us,  not  subject  to  their  imme- 
diate use,  they  must  grow  up  in  ignorance  and  pauperism, 
for  the  father,  as  such,  cannot  touch  this  property;  he  has 
no  control  over  it,  nor  could  the  Ordinary  or  the  Orphans 
Court  aid  him  in  the  disposition  of  it.  A  guardian  must  be 
-appointed,  and  he,  and  he  only,  under  the  control  of  the 
proper  court,  can  dispose  of  it,  whether  there  be  much  or 
little,  and  thereby  appropriate  it  for  the  proper  and  neces- 
sary maintenance  and  education  of  the  children  during  their 
minority.  That  such  a  guardian  might  have  been  created 
for  such  a  purpose  at  the  time  of  making  the  order  before  us ; 
that  such  guardian  might  have  been  the  father  of  the  chil- 
dren, and  that  under  an  order  of  the  Orphans  Court  he  might 
lawfully  have  sold  their  real  estate,  or  so  much  as  was  neces- 
sary for  their  maintenance  and  education,  does  not  seem  to 
admit  of  a  doubt. 

The  Orphans  Court,  in  their  order,  recognized  this  father 
as  the  guardian  of  his  children  ;  they  called  him  guardian, 
and  they  treated  him  as  guardian,  but  how  he  became  such 
they  did  not  insert  in  their  order,  nor  was  it  necessary  for 
them  to  do  so ;  nor  have  they  inserted  the  evidence  by 
which  his  guardianship  was  manifested  to  them,  nor  was  it 


576       COURT  OF  ERRORS  AND  APPEALS. 

Graham  r.  Huughtalin. 

necessary  for  them  to  do  so.  The  court  say  that  their  order 
was  made  on  full  examination.  The  evidence  on  which  they 
made  that  exam i nation  was  before  them ;  it  is  not  before  us, 
and  it  is  neither  our  duty  nor  our  right  to  attempt  to  deter- 
mine in  this  way  that  the  evidence  on  which  they  acted  was 
insufficient,  or  that  their  decision  was  unwise  or  even  illegal 
in  itself,  and  ought  to  be  reversed.  This  is  the  very  inquiry 
which  all  the  decisions  declare  we  have  no  right  to  make. 

In  the  case  of  Voorhees  v.  The  Bank  of  the  United  States, 
10  Peters  472,  in  an  opinion  of  immense  jwwer  and  force,  in 
which  this  same  kind  of  question  was  before  the  Supreme 
Court  of  the  United  States,  Judge  Baldwin,  among  other 
things,  says :  that  "  the  defendants,  in  resting  their  case  on 
the  only  position  which  the  record  leaves  them,  necessarily 
affirm  the  general  proposition,  that  a  sale  by  order  of  a  court 
of  competent  jurisdiction  may  be  declared  a  nullity  in  a  col- 
lateral action,  if  their  record  does  not  show  ajfinnatively  the 
evidence  of  a  compliance  with  the  terms  presented  by  law 
in  making  such  sale.  We  cannot  hesitate  in  giving  a  dis- 
tinct and  unqualified  negative  to  this  proposition,  both  on 
principle  and  authority  too  long  and  too  well  settled  to  be 
questioned."  That  is  the  case  here;  it  is  sought  to  go  be- 
hind the  order  of  the  court,  to  see  if  it  complied  with  the 
terms  prescribed  by  law  in  making  such  sale.  Nay,  we  are 
called  to  go  much  further,  and  say  that  the  evidence  on  which 
they  acted  in  making  the  order,  although  we  do  not  know 
what  it  was,  was  insufficient  to  make  their  determination 
strictly  legal. 

This  language  of  Judge  Baldwin,  with  more  of  the  kind, 
is  quoted  by  Chief  Justice  Green,  in  the  case  of  Stokes  v. 
Mi'l'lf'ton,  4  Dutcher  32,  with  high  approval ;  and  he  does 
so,  he  say.s,  because  it  meets  all  the  objections  which  had  been 
urged  against  the  plaintiff's  title  in  that  case.  "  Thus  (he 
says)  it  in  urged  that  tin-re  is  no  proof  that  there  was  an  ap- 
plication for  jiariii inn,  or  that  the  land  could  not  be  divided, 
or  of  any  order  of  sale.  But  there  is  a  recital  of  those  facts 
iu  the  order  of  confirmation,  and  an  express  adjudication- 


JUNE  TERM,  1863.  577 


Graham  v.  Houghtalin. 


approving  the  sale  and  directing  conveyances  to  be  executed. 
The  approval  and  confirmation  of  the  sale  became  a  part  of 
the  record,  which  thenceforth  proves  itself  without  referring 
to  the  evidence  on  which  it  has  been  adjudged."  If  these  au- 
thorities do  not  cover  the  case  before  us,  I  know  not  what  will. 

The  statute  contemplates  at  least  three  different  kinds  of 
guardians.  There  is  no  reason  why  the  father  may  not  have 
become  such  guardian  in  some  one  of  the  ways  referred  to. 
It  does  not  appear  that  he  was  not.  That  was  a  proper  ques- 
tion for  the  Orphans  Court  to  investigate  and  decide.  The 
presumption  is  that  they  did  so.  They  say  they  did,  and  that 
he  was.  The  order  in  this  respect  is  perfect.  In  the  lan- 
guage, then,  just  quoted,  it  now  proves  itself  without  referring 
even  to  the  evidence  on  which  it  was  adjudicated. 

Having  reached  the  conclusion  that  this  order  of  the  Or- 
phans Court  is  valid  and  binding  upon  us,  and  that  the  pur- 
chaser under  it  took  a  good  legal  title  to  the  premises  sold, 
while  the  verdict  of  the  jury  is  destructive  of  that  title,  it 
becomes  necessary  to  inquire  whether  anything  occurred  at 
the  trial  to  which  exception  was  taken,  and  on  which  error 
has  been  assigned,  to  render  that  verdict  unlawful. 

The  plaintiffs,  in  reply  to  the  proceedings  in  the  Orphans 
Court,  and  the  deed  made  in  pursuance  thereof,  allege  fraud 
in  the  proceedings  on  the  part  of  the  guardian,  such  as 
should  vitiate  the  deed,  and  render  void  the  sale,  even  in  the 
hands  of  the  present  owner.  The  defendant's  counsel  asked 
the  court  to  charge  the  jury  that  there  was  no  evidence 
before  them  from  which  they  could  infer  fraud,  especially 
against  the  present  purchaser.  This  the  court  refused  to  do, 
but  charged  directly  to  the  contrary,  that  there  was  evidence 
from  which  they  could  infer  such  fraud  as  would  render  void 
the  sale  by  the  guardian;  that  Holsman  stood  in  no  better 
situation  than  Doremus  did ;  that  they  had  a  right  to  look 
.  at  the  fact,  that  the  deeds  of  Doreinus  and  Ryerson  were  of 
the  same  date ;  that  they  had  a  right  to  look  at  the  guar- 
dian's account,  as  filed  in  the  Orphans  Court,  and  at  Dore- 
mus' poverty,  as  an  inducement  for  fraudulent  conduct.  I 


578       COURT  OF  ERRORS  AND  APPEALS. 

Graham  v.  Hough talin. 

am  forced  to  think  that  much,  if  not  all  of  this  charge  is 
erroneous.  There  was  no  evidence  of  fraud  on  the  part  of 
Holsman,  or  of  his  knowledge  of  any  on  the  part  of  Doremuv 
the  guardian,  which  could  justify  the  jury  in  finding  a  ver- 
dict against  his  title  on  that  groun<J.  He  obtained  his  title 
some  two  or  three  years  after  the  sale  by  Doremus,  and  then 
at  sheriff's  sale  under  the  foreclosure  of  a  mortgage.  It  does- 
not  appear  that  he  ever  saw  Doremus,  or  that  he  had  ever 
heard  even  a  whisper,  that  there  had  been  anything  unfair 
or  dishonest  in  the  transaction.  It  is  not  pretended  that  the 
property  was  sold  at  too  low  a  price.  Judge  Dickerson  says 
it  was  a  fair  price ;  and  if  the  purchase  money  had  been  put 
at  compound  interest,  from  the  time  of  sale  to  the  death  of  the 
tenants  for  life,  it  would  have  been  more  than  ten  times  that 
amount. 

Whatever  Doremus  may  have  known  or  intended,  there  is- 
no  particle  of  evidence  that  Holsman  had  any  knowledge  or. 
notice  that  there  had  been  anything  wrong,  except  so  far  a* 
he  could  learn  it  from  the  public  records.  The  jury  were 
charged,  that  they  might,  as  evidence  of  Holsman's  know- 
ledge of  fraud,  take  into  consideration  the  account  which 
Doremus  had  filed  as  the  basis  of  his  application.  In  this, 
I  think,  he  was  wrong.  That  account  had  been  before  the 
Orphans  Court,  and  had  been  passed  on  by  them.  This  that 
court  had  an  undoubted  right  to  do;  and  as  he  had  never 
heard  the  bona  /''/•--•  of  thetr  ansaction  called  in  question,  that 
account  cannot  be  considered  as  evidence,  to  him,  to  the  con- 
trary. Nor  does  the  account,  tijmn  its  face,  show  to  a  stranger 
anything  necessarily  fraudulent,  or  from  which  he  was  bound 
to  infer  it.  The  guardian  .simply  charges  each  of  his  children 
a  dollar  per  week  for  their  Ixxird,  clothing,  and  education, 
which,  if  he  had  a  right  to  charge  them  at  all,  cannot  be  con- 
sidered in  itself  extravagant  or  unreasonable. 

The  jury  were  also  charged,  that  they  might,  as  evidence 
of  fraud  against  Holsman,  take  into  consideration  that  the- 
deeds  from  Doremus  to  Ryerson,  and  from  him  back  to  Do- 
remus, bore  date  on  the  same  day.  I  am  aware  that  such  a 


JUNE  TERM,  1863.  579 

Graham  v.  Houghtalin. 

fact  has  been  held  a  kind  of  legal  fraud  in  courts  of  equity, 
but  I  cannot  agree  that  that  mere  fact  in  a  court  of  law,  as 
against  a  stranger  who  knew  nothing  of  the  transaction,  is 
to  be  considered  as  per  se  evidence  of  fraud.  If  the  parties 
in  such  cases  intended  fraud,  they  would  probably  do  the 
thing  differently ;  and  I  think  that  all  experience  shows  that 
at  least  nine  of  the  cases  out  of  ten,  when  such  occurrences 
have  taken  place,  have  been  the  result  of  benevolent  and 
friendly  feelings  towards  the  persons  whose  lands  were  thus 
sold,  and  done  for  their  benefit  and  interest,  and  not  to  their 
disadvantage;  so  that  no  legal  conclusion  can  fairly  be  drawn 
that  such  transactions  are  of  themselves  evidence  of  fraud. 
It  is  not  evidence  of  fraud  in  courts  of  equity,  although  by 
a  strange  use  of  language  it  has  been  so  termed.  The  truth 
is,  that  when  an  executor,  guardian,  or  trustee  sells  the  lands 
of  his  cestui  que  trust,  and  becomes  the  purchaser  himself, 
either  directly  or  indirectly,  the  courts  of  equity,  who  have 
these  matters  peculiarly  within  their  province,  hold  him  to 
have  acted  still  as  a  trustee  in  the  matter,  and  will  compel 
him  to  account  to  his  cestui  que  trust,  so  as  not  to  turn  the 
transaction  to  his  own  advantage. 

The  jury  were  also  charged,  that  Doremus'  poverty  might 
be  taken  into  consideration  as  against  Holsman  as  the  evi- 
dence of  fraud.  In  the  first  place,  there  is  no  evidence  what- 
ever that  Holsman  had  any  knowledge  of  the  poverty  of 
Doremus ;  and  if  he  had,  I  could  never  consent  that  it  shall 
become  established  as  a  principle  of  law,  that  poverty  is  evi- 
dence of  dishonesty  or  corruption.  It  may  be  considered  as 
evidence  of  the  necessity  under  which  Doremus  was,  which 
led  him  to  pursue  the  course  he  did,  but  cannot  of  itself  be 
considered  as  evidence  of  fraud. 

I  do  not  question  the  right  of  the  courts  of  law  to  inves- 
tigate questions  of  fraud  in  certain  cases,  nor  of  an  heir  at 
law  to  institute  an  action  of  ejectment  to  recover  the  lauds 
of  his  deceased  ancestor;  but  I  think,  nevertheless,  that  in 
all  that  class  of  cases  where  such  lands  have  been  sold  under 
an  order  of  a  court  of  competent  jurisdiction,  in  any  of  the 


680       COURT  OF  ERRORS  AND  APPEALS. 

Graham  v.  Houghtalin. 

forms  in  which  such  proceeding  can  lawfully  take  place,  and 
when  the  heir,  or  his  assignee,  with  such  proceedings  on  the 
public  records,  intends  to  assail  them  on  the  ground  of  fraud 
or  other  defect,  and  to  set  them  aside,  and  establish  his  title 
in  defiance  of  them,  he  should  be  compelled  to  do  so  in  a 
court  of  equity  :  for  it  generally,  perhaps  invariably,  hap- 
pens that  the  purchasers  at  such  sales,  even  when  it  is  the 
trustee  himself,  has  paid  a  consideration,  perhaps  a  full  and 
honest  one,  ami  has  equities  that  ought  to  be  fairly  adjusted 
if  he  cannot  hold  the  lands.  These  equities  the  Court  of 
Chancery  has  full  and  complete  power  to  arrange  according 
to  what  is  just  and  right;  but  the  courts  of  law,  it  is  well 
known,  can  do  no  such  thing,  but  are  perfectly  powerless  in 
the  matter.  All  they  can  do  is  to  strip  the  purchaser  of  his 
lands,  no  matter  how  much  he  may  have  paid  for  them,  for 
the  benefit  of  the  heir,  if  the  action  is  sustained  at  all,  and 
then  leave  him  without  redress,  unless  he,  in  turn,  Intakes 
himself,  through  a  multiplicity  of  suits,  to  a  court  of  equity 
in  pursuit  of  the  justice  which  could  easily  have  been  ad- 
ministered to  both  parties,  if  the  proceedings  had  been  at 
first  commenced  in  that  court. 

For    affirmance — Judges    COMBS,   CORNELIAN,    ELMER. 
FORT,  GREEN,  HAINES,  KENNEDY,  WALES,  WOOD — 9. 

For  reversal — VAN  DYKE. 


INDEX. 


ACTION. 

1.  If  a  constable  seize  goods  as  the 
property   of   A.,   upon    execution 
against  him,  which   were  in  fact 
the   property  of  A.  and  B.,  and 
sell  and  deliver  the  entire  property, 
B.   mav  maintain  trespass.     Far- 
rell  v.  Colwell  et  al,  123 

2.  If  the  title   of  one   partner  to  a 
moiety  of  partnership  chattels  be 
bad  as  against  an  execution  credi- 
tor, and  the  title  of  the  firm  be 
good  as  to  the  other  moiety,  both 
partners  may  maintain  a  joint  ac- 
tion in  trespass  against  the  officer 
seizing  and  selling  the  entire  pro- 
perty. Ib. 

3.  If  B.  and  C.  sue  in  trespass  for 
taking  goods  in  which  C.  had  no 
property,  and  B.  owned  one  half, 
and  no  notice  is  given  of  a  mis- 
joinder   pursuant    to    the    statute 
(Nix.  Dig.  665,  \  129,)  B.  is  enti- 
tled to  recover  damages  to  half  the 
value  of  the  property.  Ib. 

4.  An  agreement  to  sell  and  exchange 
a  horse  and  money  for  money  and 
a    piece   of   land,   is   within    the 
statute  of  frauds,  and  an  action  for 
damages  for  refusal  to  convey  the 
land  cannot  be  sustained  on  a  ver- 
bal agreement.      Rutan  v.  Hinch- 
man  et  al.,  255 

5.  Money  bet  on  the  result  of  a  horse 
race,  and  deposited  with  a  stake- 
holder, may  be  recovered  back  be- 
fore the  contract  is  executed.     Sut- 


phin  v.  Orozer, 


257 


6.  It  seems  that  the  representatives  of 
one  of  the  defendants  in  a  joint 
judgment  who   has  died    may  be 
sued,  although  the  other  defendant 
is  living.    Parker  v.  Thompson,  311 

7.  To  support  an  action  upon  a  phy- 
sician's   bill,    the    plaintiff   must 
prove  that  he  has  been   duly  li- 
censed or  has  a  diploma,  as  pre- 

581 


scribed  by  the   act  incorporating 

medical  societies.     Dow  v.  Haley, 

354 

8.  M.  owed  E.  for  board,  and  in  1849 
sold  a  lot  of  land  to  D.  In  con- 
sideration thereof,  D.  promised  M. 
that  he  would  pay,  as  part  of  the 
consideration  monev,  to  E.  $100 
per  year  after  the  death  of  M.,  as 
long  as  E.  should  live.  M.  died  in 
1849,  and  E.  in  1858.  On  an  ac- 
tion of  assumpsit,  brought  by  the 
administrator  of  E.,  D.,  in  1859— 

Held,  that  it  was  no  ground  for  non- 
suit, either  because  of  the  statute 
of  limitations,  nor  because  it  was  a 
suit  brought  for  an  annuity,  nor 
because  it  was  an  attempted  testa- 
mentary disposition,  nor  because 
it  was  a  proviso  to  pay  the  debt  of 
another,  nor  because  it  was  an 
agreement  to  be  performed  within 
one  year,  nor  because  it  was  an  at- 
tempt to  create  a  trust.  Berry's 
adm'r  v.  Doremus,  399 

See  EAILROADS. 


ADMINISTEATION  BOND. 

1.  A  bond,  by  an  executor  or  admin- 
istrator, to  the  Ordinary  of  the 
state,  which  varies  from  the  form 
prescribed  by  the  statute,  if  vol- 
untarily given,  and  not  made  void 
by  statute,  is  good.  Ordinary  v. 
Cooley,  179 


2.  When,  by  the  condition  of  such 


bond,  the  executor  or  administra- 
tor is  required  to  render  a  just  and 
true  account  concerning  the  sale, 
an  assignment  of  a  breach  of  such 
condition,  that  he  had  not  render- 
ed a  just  and  true  account  of  his 
administration  of  the  moneys  aris- 
ing from  the  sale,  is  bad  on  de- 
murrer. Ib. 


582 


INDEX. 


3.  One  of  the  conditions  of  an  ordinary 
administration    bond    is,   that  the 
administrator  will  pay  over  to  the 
persons  entitled  all  the  residue  of 
the  goods  and  chattels  found  re- 
maining upon  the  account  of  the 
administrator.     Held,  that  it  is  no 
breach  of  this  condition  that  the 
administrator  has  or  has  not  paid 
over  to  the  creditors  their  pro  rota 
share  ordered  to  be  paid  to  them 
by  the  Orphans   Court,  and   that 
the  remedy  of  the  creditors  is  un- 
der  the  other  conditions   of  the 
bond.     N-I//I-  v.  Same,  271 

4.  The  history  and  origin  of  the  dif- 
ferent conditions  of  the  adminis- 
trators' bond  commented  upon.   Ib. 


ADMISSIONS. 
See  EVIDENCE. 

AGREEMENT. 

1.  Agreement  to  sell  and  exchange  a 
horse  and  money  for  money  and  a| 
piece  of  land,  is  within  the  statute, 
of  frauds,  and  an  action  for  dam-' 
ages  for  refusal  to  convey  the  landi 
cannot  be  sustained   on  a  verbal 
agreement.      Itutnn  v.  Hinchman,] 

2661 

2.  An  agreement  whereby  the  plain-' 
tiff  granted  a  right  to  the  defend- 
ant to  erect  a  mill  dam,  and  stop  a 
ditch  on  his  land,  and  the  defend- 
ant agreed  that  all  damages  sus- 
tained should  be  paid  by  him,  held 
to  mean  such  damages  as  the  plain- 
tiff might  from  time  to  time  de- 
mand.    The  case  of  Van  Sclu>irk\. 
Cannl  Company  held  not   applica- 
ble.    Hoaylaud  v.  Veyhte,  510 

ASSESSMENT  OF  TAXES. 

1.  An  assessment  for  taxes,  under  the 
charter  of  Jersey  City,  on    ferrv 
boat*  and  a  quantity  of  coal,   al- 
leged   to   belong    to   the   Pavouia 
Ferry  Company,  net  aside  on  testi- 
mony showmg'that  the  ferry  com- 
pany had  no  interest  in  such  |>ro- 
pert'v.     The   State,    Pamnia  ferry 
Co.,\.  Richnrdt,  2M 

2.  The  question,  whether   the   ferry 


company  have  power  to  delegate 
their  right  of  ferriage,  cannot  be- 
raised  in  this  case,  where  the  ques- 
tion is,  whether  the  prosecutors 
are  or  are  not  the  owners  of  the 
property  upon  which  the  tax  has 
been  assessed.  Ib. 

3.  The  council  has  no  right  to  assess 
the  expenses  of  improving  a  street, 
incurred  by  individuals  by  author- 
ity of  the  council,  which  was  not 
contracted  for  or  superintended  by 
the  council.      State,  Van  Horn,  v. 
Town  of  Bergen,  307 

4.  The  decision  of  the  case,  5  Dutcher 
-tiii,  concurred  in.     The  assessors 
were  bound  to  show  that  they  took 
mi. i  consideration  all  the  real  es- 
tate of  the  town,  and  determined 
what  part  was   benefited.  Ib. 

5.  An  act  of  assembly,  directing  that, 
in  case  an  assessment   should   be 
set  aside,  new  assessors  should  be 
appointed,  held  not  to  authorize  a 
new   assessment   against   an    indi- 
vidual whose  tax  was  not  set  aside, 
but  had  been  paid  and  accepted  by 
i  In-  council.  Ib. 

,6.  On  petition  to  a  municipal  author- 
ity, asking  that  a  street  may  be 
paved,  the  city  council  may  regn- 
iate  the  surface  of  tiie  street,  by 
filling  and  excavating  preparatory 
to  paving  it,  and  include,  as  a  ne- 
c  i-sjiry  incident,  the  costs  of  such 
griding  in  the  assessment  for  the 
costs  of  the  paving.  State,  Hand, 
prot.,  v.  City  Council  of  Elisabeth, 

365 

,  .    \  --•--:.,.  :ii-  ;   •;   I !;.    ;•  i\  ..-,_•     I  :','••- 

I  sections,  under  the  charter  of  the 
j  city  of  Elizabeth,  must  be  con- 
I  fined  to  the  line  of  the  street  on 
which  the  improvement  is  applied 
I  for.  76. 

8.  It  is  not  necessary,  in  order  to  give 
the  city  council  of  Elizabeth  juris- 
|     diction,  that  it  should  appear  by 
I     their   minutes  that   they   had   ap- 
pnintcd  a  day  to  hear  jicrsons  ob- 
jecting to  the  improvement,  or  in- 
terested therein:  it  is  sufficient  if 
1     such  notice  of  hearing,  drawn  in 
compliance  with  the  provision  of 
the  charier  by  order  of  the  city 
council,  be  regularly  advertised  by 
the  city  clerk.  /  '•. 

0  An  incorporated  city  has  jurisdic- 
tion over  a  turnpike  road  con- 
structed witliiu  the  limits  of  tho 


INDEX. 


58$ 


city,  for  the  purpose  of  regulating, 
grading,  and  paving  it ;  but  has 
no  right  to  regulate  and  grade  the 
street  so  as  to  injure  the  turnpike 
company,  or  to  interfere  with  their 
chartered  rights :  for  police  pur- 
poses, it  has  authority  to  make 
such  municipal  regulations  as  it 
may  deem  expedient.  The  com- 
mon council  lias  no  right  to  re- 
quire the  turnpike  company  to 
grade  or  pave  their  road  ;  but  if 
the  road  be  regulated,  graded,  and 
paved  under  a  city  ordinance,  and 
the  owners  of  adjoining  lots  as- 
sessed for  the  expenses  of  the 
same,  it  is  no  excuse  for  refusing 
to  pay  such  assessment  that  the 
rights  of  the  turnpike  company 
are  infringed.  State,  Parker,  v. 
Mayor  of  New  Brunswick,  395 

10.  The  owners  of  adjacent  lots  have 
no  vested  right  to  require  the  turn- 
pike company  to  bear  the  expenses 
of  such  grading,  &c.,  nor  to  have 
the  road  continued  at  its  original 
grade.  Ib. 

11.  It  is  no  objection  to  an  ordinance 
for  such  grading,  &c.,  that  the  fee 
of  the  soil  of  the  road  is  in  the 
turnpike  company.  Ib. 

12.  If  an  ordinance  requires  a  street 
to     be     properly    regulated     and 
graded,    &c.,    without    any    fixed 
grade  being  established,  and  after- 
wards provides  that  the  work  be 
done  under  the  superintendence  of 
the  city  paver,  or  other  person  ap- 
pointed by  the  common  council,  and 
this  is  in  accordance  with  the  terms 
of  the  charter,  it  is  sufficient.     Ib. 

13.  On  a  certiorari  to  set  aside  an  as- 
sessment imposed  by  a  meeting  of 
the  taxable  inhabitants  of  a  school 
district,  (Nix.  Dig.  780)  the  court 
will  not  decide  the  legal  existence 
of  such  corporation,  or  the  legal- 
ity of  the  election  or  appointment 
of  the  persons  who  acted  as  trus- 
tees   to    incorporate    the   district 
State,  Winsor,  v.  Donahay,          404 

14.  The  certificate  of  the  trustees  of 
the  proceedings  of  a  meeting  to 
order  money  to  be  raised  by  taxa 
tion,  need  not  set  forth  the  places 
at  which  the  notices  of  the  meet 
ing  were  set  up ;  if  in  the  words 
of  the  act,  "in  at  lea-st  three  pub- 
lic places   in  said   district,"  it  is 
sufficient.  Ib. 


15.  Under  the  act  of  1862,  private 
corporations  must  be  assessed   at 
the  full  and  actual  value  of  their 
capital  stock,  and  not  on  the  full 
amount  of  their  capital  stock  paid 
in.     The  State,  Glouc'r  Manufact. 
Go.  v.  Hallam,  405 

16.  The  provisions  of  several  appa- 
rently conflicting  sections  of  the 
act  discussed.  Ib. 

.7.  A  certiorari  to  remove  and  set 
aside  an  assessment  for  improving, 
curbing,  and  guttering  a  street, 
which  the  prosecutors  allege  en- 
croaches on  their  property,  is  not 
the  proper  mode  of  trying  the  title 
of  the  prosecutors  to  the  lands  in 
question.  The  Mayor,  &c.,  of  Jer- 
sey City  v.  The  State,  Howeth,  pros., 

521 

L8.  An  assessment  will  not  be  set 
aside  merely  because  the  money 
has  been  expended  upon  land  not 
properly  subjected  to  public  use. 

Ib. 

L9.  A  notice  of  intention  to  pave  a 
street,  unless  otherwise  expressed, 
refers  to  a  street  as  it  is,  dejure. 

Ib. 

See  TAXATION. 


ATTACHMENT. 

Attachments  for  not  obeying  a  man- 
damus to  open  a  road,  served  on. 
an  overseer  after  he  went  out  of 
office,  and  on  the  new  overseer,  re- 
fused. State  v.  Elkinton  et  al.,  33£ 

See  OVERSEERS  OP  HIGHWAYS,  1, 

2,3, 
MANDAMUS,  2,  3,  4. 


ATTORNEY  AND  CLIENT. 

The  statement  of  counsel  in  a  jus- 
tice's court,  made  several  months 
after  the  trial,  and  when  lie  had 
ceased  to  represent  his  client,  can- 
not bind  the  client.  Janeway  v. 
Skerritt,  97 


BETS  AND  BETTING. 
See  GAMINQ. 


£84 


INDEX. 


BILLS  OF  EXCHANGE. 

In  order  that  a  promise  to  accept  a 
bill  shall  amount  to  an  acceptance, 
the  holder  must  have  taken  the 
bill  on  the  faith  of  the  promise, 
and  until  such  negotiation  there  is 
no  acceptance ;  it  amounts  to 
nothing  but  a  contract  between 
the  drawer  and  drawee  collateral 
to  the  bill,  which,  like  all  other 
contracts,  must  have  a  considera- 
tion to  support  it.  Overman  v. 
Hoboken  City  Bank,  61 

Set  PROMISSORY  NOTES, 


BOND. 

A  declaration  alleged,  that  whereas 
the  defendant,  by  a  certain  bond,' 
did  recite  that  he  held  a  bond  :m<l 
mortgage  given  by  J.  A.  S.  to  him, 
as  trustee,  to  be  appropriated  byi 
the  defendant  to  the  support  of 
one  M.  S.  during  her  life,  and  to' 
pay  the  residue  that  might  remain 
in  his  bauds  to  the  plaintiff 

Held  that  a  plea  averring  that  the 
land  covered  by  the  mortgage  has 
been  sold,  and  all  its  proceeds  ab-1 
rorbed  by  prior  encumbrances,  is, 
a  good  defence.  Stauta  v.  Bergen,\ 

131 

Set  ADMINISTRATION*  BONDS. 
OFFICIAL  Bonn. 


CANCELLATION  OF  JUDG- 
MENTS. 

See  JUDGMENTS. 


CAPIAS  AD  SATISFACIEN- 
DUM. 

1.  A  oa.  mi.  cannot  be  issued  pending 
proceedings  under  the  act  to  pre- 
vent fraudulent  trusts  and  assign- 
ment*.    Jimme  v.  Titiu  el  a/.,     340 

2.  The  plaintiff  is  a  competent  wit- 
ness on  an  application  for  a  ca.  m 

Ib 

8.  It  is  not  sufficient  for  the  commis- 
sioner to  decide  that  there  was 
proof,  to  bin  satisfaction,  that  the 
•  Iff-  IP  Ian  i  had  rights  or  credit*, 
moneys  or  effort*,  either  in  his 
own  |io*iieNMon,  or  in  the  |KJMeasion 


of  some  other  persons ;  in  the 
words  of  the  act,  he  should  specify 
by  means  of  which  of  the  several 
things  mentioned,  the  fraud  was 
committed.  Ib. 

4.  A  statement,  that  defendant  made 
certain   representations    to   plain- 
tiff, and   that   he  had  discovered 
recently   they    were   false,  is   not 
sufficient  evidence  that   the  debt 
was  fraudulently  contracted.      Ib. 

5.  The  statements  made  by  the  de- 
fendant, when  examined  under  the 
trustee  act,  cannot   afterwards  be 
sworn  to  as  evidence  of  fraud  to 
procure  a  ca.  m.  Ib. 


CERTIORAEI. 

1.  Where   a  city  charter  authorizes 
street   improvements  to  be  made, 
or  work  done  only  on  the  applica- 
tion in  writing  to  the  council  of  a 
majority  of  the  resident  owners  of 
property  lying  along  such  street, 
it  should  appear  in  the  return  to 
the  cerliorari   bringing  up  for  re- 
view the  proceedings  of  the  city 
council,   that    the   application    is 
signed  by  a  majority  of  the  resi- 
dent owners;  the  burthen  of  proof 
is  on  the  defendants,  and  such  fact, 
being   a  jurisdictional    one,    must 
ap|>ear  on  the  face  of  the  proceed- 
ings.      State,  Woodruff,   v.   Council 

Klizabcth,  176 

2.  If  it  appear   by  the   return  to  a 
writ   of  eerfiorari,   that   the   same 
subject  matter  has  been  heard  and 
adjudged  by  the  court  on  a  former 
eertiorari,   to    which    the    present 
prosecutor  was  a  party,  and  that 
judgment    thereon    was   rendered 
against  him,  the  writ  will  he  dis- 
missed.    Statt,    Malone,    v.    Water 
CbMMttCKHMTt,  247 

party  wishing  a  review  of  an 
asaesMiient  for  a  municipal  im- 
proveiuent  must  exercise  reasona- 
ble diligence ;  and  if  it  ap|>ear  that 
the  work  has  been  done,  and  the 
assessment  for  it  satisfied  more 
than  three  years  before  the  eertio- 
rnn  wax  allowed,  the  court  will 
•  li-nii—  the  writ.  Ib. 

I.  The  allowance  of  a  common  law 
writ  is  a  matter  of  discretion  ;  and 
whenever,  in  the  progress  of  a 
<:IIIM-,  the  court  discovers  fact* 


INDEX. 


585 


which,  had  they  been  disclosed  on 
the  application  for  the  writ,  would 
have  induced  a  refusal  of  the  allo- 
catur,  the  court  may,  of  its  own 
motion,  dismiss  the  writ.  Ib. 

5.  A    certiorari   to   remove    and    set 
aside  an  assessment  for  improving, 
curbing,    and    guttering   a   street, 
which   the  prosecutors  allege  en- 
croaches on  their  property,  is  not 
the  proper  mode  of  trying  the  title 
of  the  prosecutors  to  the  land  in 
question.     The  Mayor,  &c.,  of  Jer- 
sey Oily  v.  The  State,  521 

6.  The  Supreme  Court  cannot,  upon 
affidavits  taken   upon  a  certiorari 
to   remove   an   assessment,    either 
properly  or  conveniently  try  title 
to  lands,  and  settle  disputed  facts 
involving  a  determination  of  ques- 
tions of  fraud  and  intention.       Ib. 

1.  A  certiorari  for  the  purpose  of  re- 
moving an  assessment,  brought] 
within  a  reasonable  time  after  the 
assessment  was  ratified  and  con- 
firmed, will  not  be  dismissed  be- 
cause the  ordinance  which  is  thus 
brought  incidentally  in  q-.ies:ion 
was  passed  a  long  time  previous. 
The  State,  Doyle,  v.  Newark,  303 

See  JURISDICTION. 

SURVEYORS  OP  HIGHWAYS. 

ASSESSMENT. 


CHECK. 

1.  Whether   a  failure    to    return    a 
check  (when  sent  to  the  bank  on 
which  it  is  drawn)  in  a  reasonable 
time   amounts   to   an    acceptance, 
must  always  depend   on   the  par- 
ticular circumstances  of  each  case. 
A  failure  to  return  is  not  of  neces- 
sity an  acceptance ;    they  are  not 
convertible    terms.      Overman    v. 
Hoboken  City  Bank,  61 

2.  The  general  rule  is,  that  the  holder 
of  a  check  is  bound  to  present  it 
for  payment  in  a  reasonable  time, 
and   if  not  paid,   to  give  notice 
thereof  to  the   drawer  in  a  like 
reasonable  time.     What  is  reason- 
able time  will  depend  upon  circum- 
stances.    Taylor  v.  Sip,  284 

3.  What  considered  reasonable  time 
in  the  case  of  a  check  post  dated, 
and  deposited  for  collection  upon 


4.  A  check  post  dated  must  be  con- 
sidered as  issued  the  day  it  bears 
date. — Per  WHELPLEY,  Ch.  Just. 

16. 


CLEARING  HOUSE. 

Without  stating  in  the  declaration 
that  the  association  called  the 
"  clearing-house  "  is  an  institution 
authorized  by  special  legislation, 
or  any  authority  existing  in  such 
association,  in  any  way,  to  alter 
or  modify  the  law  merchant  in  re- 
gard to  checks  or  commercial  pa- 
per, such  association  cannot  be 
held  to  have  power  to  make  usages 
or  rules  to  bind  those  who  are  not 
parties  to  its  organization.  Over- 
man v.  Hoboken  City  Bank,  61 

2.  Its  usages  and  rules,  if  not  in  con- 
flict with  law,  may,  by  the  impli- 
cation of  tacit  adoption  in  the  con- 
tracts of  members,  bind  them  in 
the  same  way  that  a  general  usage 
of  trade  may  bind  those  who  deal 
with  reference  to  it,  and  who  are 
therefore  held  impliedly  to  adopt 
it.     But  those  who  are  not  bound 
by  such  usages,  and  have  not  con- 
tracted   with    reference    to   them, 
have  no  right  to  avail  themselves 
of  them   to   create   an   obligation 
against  those  who  are  parties  to 
their  adoption,  and  bound  by  them 
inter  sese  only.  Ib. 

3.  Customs  and  usages  in  derogation 
of  the  common  law  must  be  strictly 
pleaded,  and  when  well   pleaded 
the  count  must  show  a  case  clearly 
within  the  usage.  Ib. 


the  day  of  its  date. 


Ib. 


CLERKS'  FEES. 

Under  the  act  respecting  convey- 
ances (Nix.  Dig.  131,  g  9,)  and  the 
act  respecting  mortgages,  (Nix. 
Dig.  550,  §  1,)  the  clerks  of  the 
Courts  of  Common  Pleas  are  enti- 
tled to  charge  all  persons  making 
searches  the  "  fees  allowed  by  law." 
The  fees  are  allowed  for  searches 
as  well  as  for  transcripts.  Fleming 
v.  Clerk  of  Hudson,  280 

COMMISSIONERS  OF  APPEAL. 
1.  All  parties  are  bound  to  take  no- 


686 


INDEX. 


t'u-e  of  the  Hay  appointed  by  law 
for  the  meeting  of  the  commission- 
ers of  appeal  in  cases  of  taxation  ; 
but  if  the  commissioners  meet  at 
any  other  time  than  that  appoint- 
ed by  law  such  meeting  must  be 
upon  notice,  and  must  also  be  at 
the  place  of  holding  the  town 
meeting,  in  order  to  obtain  juris- 
diction of  the  person  of  the  asses- 
sor; and  they  cannot,  therefore, 
without  such  notice  alter  his  as- 
sessment. Nixon  y.  RupU,  58 
2.  The  tribunal  of  the  commissioners 
of  appeal  is  a  special  tribunal,  and 
it  is  well  settled  that  such  tribu- 
nals should  show  upon  the  face  of 
their  record,  all  facts  necessary  to 
give  jurisdiction.  Ib. 

See  'JURISDICTION. 


COMPROMISE. 
See  CONSIDERATION. 

CONFESSIONS  OF  PRISONERS. 

A  murder  was  committed  on  the  8th 
March,  1863.  On  the  30th  of 
March,  the  prisoner  confessed  to 
G.  H.  and  to  the  sheriff,  that  he 
did  it.  On  the  2d  of  April,  the  de- 
fendant confessed  the  whole  thing 
in  writing  before  the  justice.  On 
the  loth  April,  he  confe-ssed  the 
fact  again  to  T.  M..  and  on  the 
20th  of  April,  again  to  T.  R.  A 
verdict  of  guilty  being  rendered, 
the  court  suspended  judgment,  and 
certified  the  case  to  this  court  for 
their  advisory  opinion,  as  to 
whether  the  Over  should  grant  a 
new  trial,  on  account  of  the  illegal 
admission  of  the  said  confessions. 

Held,  that  even  if  the  original  eon- 
femion  were  illegally  admitted  in 
evidence,  because  obtained  by  un- 
due promise?*  and  threats,  vet  that 
the  court  would  decline  to  advise 
a  new  trial,  nnlewt  the  subsequent 
confesxionH  were  specially  objected 
to  in  (he  Over,  on  account  of  their 
having  been  obtained  under  the 
influence  of  the  original  promise* 
or  thrcau.  The  cane  not  having 
any  such  special  objections,  this 
court  will  presume  that  (he  Oyer 


were  satisfied,  as  a  question  of 
fact,  that  the  subsequent  confes- 
sions were  not  produced  by  the  in- 
fluence of  the  original  promises  or 
threats.  And  upon  a  review  of 
the  facts,  this  court,  seeing  no  rea- 
son to  doubt  the  correctness  of  the 
admission  of  such  subsequent  con- 
fessions, will  not  advise  a  new 
trial.  State  v.  Brooks,  357 


CONSIDERATION. 

A  suit  was  brought  by  the  plaintiffs 
against  the  defendants  on  a  note 
purporting  to  be  for  $1500.  The 
defence  set  up  was  forgery:  the 
parties  compromised  the  suit  by 
the  defendants  giving  the  plaintiffs 
a  new  note  for  $1000;  and  upon 
suit  brought  on  the  last  note — held, 
that  the  compromise  was  n  good 
consideration  for  the  new  note,  and 
that  the  defendants  could  not  set 
up  as  a  defence  that  the  first  note 
was  a  forgery.  Grant  A  Kelly  v. 
Chambers,  323 


CONSTITUTIONAL  LAW. 

1.  The  seventh  section  of  the  act  of 
1854,  Nix.  Dig.  851,  assessing  the 
tax  on  the  mortgagor,  where  the 
mortgagee  resides  out  of  the  town- 
ship, is  not  unconstitutional  as  im- 
pairing the  obligation  of  contracts, 
and  tin-  oath  of  the  collectors  and 
their  receipts  are  prima  facie  evi- 
dence of  the  projH-r  payment  of 
such  tax.     Cook,  ex'r,  v.  Smith,  387 

2.  A  law  laving  n  special  tax  on  the 
business   of   foreign   corporations, 
regularly  doing  business    in    this 
state,  trans|tortinir  passengers  and 
merchandise  acroNS  the  state,  from 
and  to  foreign  -t;it«->.  such  tax  being 
graduated   by  the  number  of  the 
passengers  and  the  weight  of  the 
goods  carried,  is  not  an  infringe- 
ment of  that  clause  of  the  consti- 
tution of  the  United  Suites  which 
gives   to  congress    the    power  to 
regulate  commerce  among  the  sev- 
eral states.   State  v.  Del.  and  I^ack. 
R.  R.  Co.,  478 
Stale  v.  Erie  Railway,  Ib. 


INDEX. 


587 


3.  Such  commerce  is  not  of  such  a 
national    character,   that   a    state 
may  not  regulate  it  in  the  manner 
complained   of,  without  violating 
the    constitution    of    the    United 
States.  fb. 

4.  Such  tax   is  merely  a  tax   upon 
the  company,  in  proportion  to  the 
number  of  passengers  and  weight 
of    merchandise    transported     by 
them  within  this  state,  and  not  a 
regulation    of    commerce    among 
the  states.  /  6. 

-5.  A  foreign  corporation,  upon  which 
has  been  conferred  by  the  legisla- 
ture of  this  state  the  power  to  pur- 
chase and  hold  lands  in  this  state, 
does  not,  by  reason  of  such  legisla- 
tive action,  lose  its  foreign,  and  ac- 
quire a  domestic  character.  A  cor- 
poration can  be  properly  said  to 
exist  only  in  the  state  which  cre- 
ated it.  Ib. 


CONTRACT. 

1.  Conover  agreed  to  sell  Cornelius 
Petty  all  the  corn  he  had  to  sell, 
supposed  to  be  in  all   about   600 
bushels,  the  white  at  65  cents,  and 
the  yellow  at  63  cents  per  bushel. 
C.  delivered  the  white,  and  offered 
to  deliver  the  yellow,  which  Petty 
refused  to  receive :  held,  that  the 
contract  was  an  entirety,  and  the 
refusal  of  the  plaintiff  to  receive 
the  yellow  was  a  repudiation   of 
the  contract,  and  that  C.  could  re- 
cover the  value  of  the  white  in 
trover,  and   that   he  could  do  so 
even  if,  before  demand  and  refusal, 
Petty  had  so  mixed  the  whole  corn 
as  that  it  could  not  be  identified. 
It   was    not    error    in    the   court 
charging  the  jury  that  C.  could  re- 
cover, even  if  the  corn  had  been 
ground  before  demand  and  refusal 
Thompson  v.  Conover,  32£ 

2.  When  the  seller  contracts  to  send 
a  horse  to  the  purchaser  in  New 
York,  to  be  paid  for  when  received 
in  the  city,  the  risk  of  the  horse  is 
upon  the  seller  until  the  horse  is 
delivered  in  New  York.     Perrine 
v.  Serrell,  454 

CONTRACTS  IRREPEALABLE 
See  RAILROAD  CHARTER. 


CORPORATION. 

1.  The  bonds  issued  by  this  state  un- 
der the  act  of  1861  (Laws  1861,  p. 
554,)   are  exempt   from   taxation 
when  held  by  individuals  or  cor- 
porations.    Newark  Oity  Sank  v. 
The  Assessor,  &c.  1 

2.  The  stocks  and  securities  issued  by 
the  United  States  under  the  power 
to  borrow  money  are  exempt  from 
state  taxation  in  the  hands  of  in- 
dividuals or  corporations.  Ib. 

3.  Stocks  in  foreign  corporations,  held 
by  individuals  resident  in  this  state, 
are  personal  estate  within  this  state, 
and  subject  to  taxation.  Ib. 

4.  Corporations  are  entitled  to  have 
deducted  from  the  amount  of  their 
capital  stock  paid  in,  and  accumu- 
lated surplus,  the  amount  of  the 
bonds  of  this  state  and  the  stock 
and  public  securities  issued  by  the 
United  States  owned  by  them  at 
the  time  of  assessment.  Ib. 

ISee  FOREIGN  CORPORATIONS. 
MUNICIPAL  CORPORATIONS. 


COUNTIES. 

1.  The  inhabitants  of  counties  were 
not  indictable  at  common  law  for 
not  repairing  bridges  over  canals, 
but  only  bridges  over  rivers.  State 
v.  Inhabitants  of  Hudson,  137 

2.  The  inhabitants  of  counties  in  this 
state  are  not  indictable  for  not  re- 
pairing bridges  over  rivers  in  this 
state.  Ib. 

See  INDICTMENT,  10,  11. 


CRIMINAL  PROCEEDINGS. 

1.  On  a  trial  for  murder,  it  is  not  a 
sufficient  objection  to  the  panel  of 
jurors  served   upon  the   prisoner 
that  it  is  not  according  to  the  stat- 
ute.     The     particular    objection 
should   be  pointed   out.     State  v. 
Brooks,  356 

2.  A  panel  headed  "  petit  jury,  April 
term,  1863,"  containing  the  names 
of  forty-eight  jurors,  and  the  names 
of  the  townships  where    they  re- 
side  abbreviated,   is  sufficient,  if 
served  on  the  prisoner  at  the  same 


688 


INDEX. 


time  with  the  copy  of  the  indict- 
ment, if  the  abbreviations  are  such 
as  clearly  to  indicate  the  residences 
of  the  jurors.  A  cross  over  the 
name  of  one  of  the  jurors  will  not 
vitiate  the  panel,  if  it  leaves  the 
name  of  such  juror  plainly  legible. 

Ib. 

CUETESY. 

See  DEED. 


CUSTOM  AND  USAGE. 

Customs  and  usages  in  derogation  of 
the  common  law  must  be  strictlv 
pleaded,  and  when  well  pleaded, 
the  count  must  show  a  case  clearly 
within  the  usage.  Overman  v. 
Hoboken  City  Bank,  61 

See  CLEARING  HOUSE. 


DAMAGES. 

1.  If  B.  and  C.  sue  in  trespass  for 
taking  goods  in  which  C.  had  no 
property,  and  B.  owned  one  half, 
and  no  notice  is  given  of  a  mi-- 
joinder pursuant  to  the  statute,  B. 
is  entitled  to  recover  damages  to 
one  half  the  value  of  the  property. 
FarreU  v.  OnJwell,  123 

2.  If  no  question  was  made  ut  the 
trial   in  regard  to  the  amount  of 
damages  in  case  C.  was  not  proved 
to  be  an  owner,  and  the  court  was 
not  asked  to  charge  on  the  point, 
and  it  appears  that  damages  to  the 
full   value  were   given,  the  judg- 
ment will  not  be  reversed,         to. 

3.  Damages  for  taking  a  hone  may 
be  what  he  was  worth  in  the  busi- 
ness in  which    he  was  employed 
by  the  plaintiffs.  Ib. 

4.  When  a  railroiid  company  is  sued 
for  damages  Runtainea  by  n  colli- 
sion on  their  road,  induced  by  tin- 
negligence  of  the  company  or  their 
agenu,   and    it  appears  that   the 
party  injured   wait  himself  guilty  j 
of  such  negligence  or  want  of  rea-l 
•enable  care  an  contributed  to  thel 
doing  of  the  injury,  there  can  be- 
no    recovery.     Telfer  v.   Northern 
JZ.J2.Cb,  i" 


5.  "  In  crossing  ordinary  roads,  cau- 
tion and  care  are  chiefly  demand- 
ed  to   avoid   running  against    or 
over    anybody   else ;    in    crossing 
railroads,  it   is  exacted   to  avoid 
being  run  over  yourself.     In  the 
former  case   the    blame   attaches 
prima  facie  to  the  party  doing  the 
injury ;  in  the  latter,   it  attaches, 
in  the  first  instance,  to  the  party 
obstructing  the  track." — Per  VAST 
DYKE,  J.  76. 

6.  In  an  action  under  the  statute  to 
recover  damages  for  death  caused 
by  negligence,  only  the  pecuniary 
loss   or    injury   sustained   by   the 
plaintiff"  can  be  allowed  :   and  in 
estimating   that,    the    chances   of 
health  and  life  are  10  be  considered 
in   connection  with   the  value   of 
services.  Ib. 

7.  The  reciprocal  duties  of  railway 
companies    and    persons    crossing 
their  roads  discussed.  //•. 

8.  Under  a  warranty  that  a  horse  is 
sound    and   kind,  and  that   if  he 
should  not   suit,  the  seller  would 
take    him    back,    and    send     the 
purchaser  another,  held   that   the 
warranty  as   to   unsoundness   was 
independent,  and  that  the  right  to 
provide  another  horse  under  the 
contract  did   not  extend    to    un- 
soundness ;    that  the   horse  being 
unsound,    and    having    died,   the 
purchaser  could  recover  damages, 
and  was  not  obliged  to  call  upon 
the  seller  to  furnish  another  horse. 
Perrine  v.  SerrcU,  455 

).  The  measure  of  damages  in  such 
case  is  the  difference  between  the 
horse,  if  sound,  and  as  he  actually 
was.  Expenses  paid  l>y  the  plain- 
tiffin  delivering  the  horse  in  New 
York  to  be  allowed.  Ib. 

10.  An  agreement,  whereby  the  plain- 
titr  granted  a  right  to  the  defend- 
ant to  erect  a  mill  dam,  and  stop  a 
ditch,  on  his  land,  and  the  defend- 
ant agreed  that  all  damages  sus- 
tained should  be  paid  by  him, 
held  to  mean  such  damages  as  the 
plaintiff*  might  from  time  to  timn 
Htutaiu.  The  case  of  Vin  Schoick 
v.  Oanrtl  Company,  Spencer  24, 
held  not  applicable.  Hoagland  v. 
1  516 

See  STATUTE,  COXBTBCCTION  or. 


INDEX. 


589 


DEEDS. 

1.  A  deed  made  by  A.  B.  in  consider- 
ation of  love  and  affection,  and  of 
one  dollar,  to  C.  D.,  wife  of  E.  F., 


25th,  1852,  the  deed  being  subse- 
quent to  the  act.  Ib. 
8.  The  husband  not  entitled  to  cur- 
tesy  in  the  premises  on  surviving 
his  wife,  the  grantee.  Ib. 


in  which  the  said  A.  B.  doth  grant,  9.  A  deed  was  made,  on  the  31st  Au- 


bargain,  sell,  alien,  remise,  release, 
and  confirm  certain  real  estate  to 
the  said  C.  D.,  during  her  natural 
life,  and  at  her  death  to  her  chil- 
dren which  may  be  begotten  of  her 
present  husband ;  to  nave  and  to 
hold  the  said  premises  unto  the 
said  C.  D.  for  and  during  her  nat- 
ural life,  and  at  her  death  to  her 
children  which  may  be  begotten 
of  her  present  husband,  E.  F.,  and 
containing  covenants  of  seizin  and 
general  warranty,  which  are  made 
by  the  grantor  for  herself  and  her 


gust,  1810.  by  G.  G.  to  D.  and  E., 
his  wife,  conveying  to  the  said  D. 
and  wife  the  premises  in  question, 
for  and  during  their  natural  lives, 
and  the  life  of  the  survivor  of 
them,  and  after  their  decease,  to 
the  children  of  the  saiil  D.  by  his 
said  wife,  and  to  their  heirs  and 
assigns  for  ever. 

Held,  that  the  remainder  vested  in 
the  children  living  at  the  date 
of  the  deed,  subject  to  open  to  let 
in  after-born  children.  Graham  v. 
Houghtalin,  552 


heirs,  with    the  grantee   and  hen  |10.  On  the  loth  June,  1818,  the  said 


heirs  and  assigns,  conveyed  to  the 
grantee  an  estate  for  life  only,  with 
a  remainder  vested  in  G.  H.,  a 
child  of  the  said  C.  D.,  for  life, 
subject  to  open,  and  let  in  after- 
born  children  to  the  same  estate. 
Adams  et  al.  v.  Ross,  505 

2.  The  estate  created  was  not  an  es- 
tate  in  fee   or   in  fee   tail,  there 
being   in   the  grant  no  words  of 
inheritance  or  procreation.        Ib. 

3.  The     covenants    warranting    the 
premises  to  C.  D.  and  her  heirs 
did  not  enlarge  the  estate,  nor  pass 
by  estoppel  a  greater  estate  than 


that  expressly  conveyed. 


Ib. 


4.  A  warranty  attaches   only  to  the 
estate  granted,  or  purporting  to  be 
granted.     If  it  be  a  life  estate  the 
covenantor    warrants    nothing 
more ;   the  conveyance  being  the 
principal,  the  covenant  the  inci- 
dent. Ib. 

5.  In  the  construction  of  a  deed,  the 
question  is,  not  what  estate  did  the 
grantor  intend  to  pass  by  proper 
and  apt  words.     No  expression  of 
intent,  no  amount  of  recital  show- 
ing the  intention,  will  supply  the 


omission.  Ib. 

6.  A  mortgage  made  after  the  con- 
veyance, and  while  the  said  C.  D. 
was  a  minor,   created    no    valid 
charge  on  the  estate  against  the 
said  C.  D.    -  76. 

7.  The  grant  made  to  C.  D.  was  with- 
in the  provisions  of  an  act  for  the 
better    securing  the   property   of 
married    women,    passed     March 

VOL.  i.  2  o 


D.  and  his  wife  were  still  living, 
and  had  then  six  minor  children, 
and  afterwards  had  two  more  born. 
On  the  said  15th  June,  D.,  as  the 
guardian  by  nature  of  his  children, 
obtained  a  decree  of  the  Orphans 
Court  of  Essex  to  sell  the  said 
lands  for  the  support  of  said 
minors.  Ib. 

11.  In  an  action  of  ejectment,  brought 
by  the  children  against  the  pur- 
chaser, after  the  death  of  D.  and 
wife,  held   that   the   two   children 
born  after  the  sale  were  not  atfect- 
ed  by  it.  Ib. 

12.  Held  further,  that  the  other  chil- 
dren, being   minors,  and   not  or- 
phans, at  the  time  of  the  decree  for 
sale  by  the  Orphans  Court,  were 
not  bound  by  the  decree  ;  that  the 
Orphans  Court  had  no  jurisdiction 
over  the  subject  matter,  and  that  a 
sale  under   the  decree   was  void, 
and  conveved  no  title.  Ib. 


DELIVERY. 

1.  Title  to  goods  and  chattels  may 


pass  by  gift  inter  vivos  when  there 
is  a  delivery  of  the  property. 
Mere  delivery  of  the  goods  will 
not  in  general  pass  the  title ;  there 
musi,  be  an  intention  to  give  ac- 
companying the  act  of  delivery  in 
order  to  consummate  the  gift,  or 
the  circumstances  attending  the 
delivery  of  the  goods  must  be  such 
as  ordinarily  accompany  a  gilt, 


590 


INDEX. 


inducing  the  donee  to  believe  that 
a  gift  was  intended.  If  that  be 
the  case,  the  title  to  the  goods  will 
pass,  although  it  may  not  be  the  | 
secret  intention  of  the  donor  to 
make  a  gift. 

2.  When  a  gift  is  completed  by  de- 
livery and  acceptance  of  the  chat- 
tel, it  is  irrevocable.  So  long  as 
there  is  no  delivery  and  accept- 
ance it  mav  be  revoked.  Belt*  v.ji 
Francis,  152 


DEVISE. 

1.  A  device  of  "one  acre  of  land  join- 
ing  the   road    leading   from    Me-i 
UK-hiii    to    Bonhamtown    on    the 
west,  and    my   house   lot  on   the' 
east" — held,   that    the    house    lot; 
was  only  descriptive  of  one  of  the 
boundaries  of  the  one  acre  lot,  and! 
that  the  house  lot  did  not  pass  by 
such   devise.      Neriwt   v.   Martin, 

46oj 

2.  If  there  be  no  latent  ambiguity. 
the  conduction  of  a  will  must  be 
drawn  from  the  words,  and  parolj 
testimony  cannot   be  admitted  to 
supply,  contradict,  enlarge,  or  vary' 
the  words,  or  to  explain  the  Juu-n- 
tion  of  the  testator.  76. 


DISORDERLY  HOUSE. 
See  INDICTMENT. 

DISTRIBUTION. 
See  EXECUTION. 

DUE  DILIGENCE. 
See  PROMISSORY  NOTES. 

ELIZABETH  CITY  CHARTER. 

1.  Assessment*  for  the  paving  of  in- 
tersection*, under  the  charter  of 
th«  city  of  Elizabeth,  must  be  con- 
fined to  tlio  line  of  the  street  on 
which  the  improvement  i»  ap|>lie<l 
for.    Slatf,  Hand  v.  Klivtbfth,    *'•"» 

2.  It  U  not  necessary,  in  order  to  give 
the  city  council  of  ElizuU- 


diction,  that  it  should  appear  by 
their  minutes  that  they  had  ap- 
jwinted  a  day  to  hear  j>ersons  ob- 
jecting to  the  improvement,  or  in 
terested  therein  :  it  is  sufficient  if 
such  notice  of  hearing,  drawn  in 
compliance  with  the  provisions  of 
the  charter  by  order  of  the  city 
council,  be  regularly  advertised 
by  the  city  clerk.  76. 


ESTATE  TAIL. 
See  DEED. 


ESTOPPEL. 

See  MUNICIPAL  CORPORATIONS. 
OFFICIAL  BOND, 
PLEAS  AND  PLEADING. 


EVIDENCE. 

1.  A  paper  may  be  competent   evi- 
dence of  a  fact  stated  in  it,  although 
invalid  as  an  agreement  to   bind 
the  party.    Ortley  v.  Chad\cick,     35 

2.  The  statements  of  an  agreement 
invalid  for  want  of  consideration 
may    l>e   competent,  and    may    l>e 
proved  by  the  paper.  76. 

3.  In  an  action  of  trespass  for  assault 
and     battery,     evidence     directly 
tending  to  show  that  the  plaintiff 
had  got  up  a  false  case  to  impose 
upon  the  jury  is  comjiotent  in  mit- 
igation of  damages,    nrege  v.  West- 
cotl,  213 

I.  A  letter  from  the  plaintiff  to  the 
father  of  the  defendant,  not  con- 
taining a  statement  of  any  facts 
material  to  the  controversy,  and 
relating  only  to  an  offer  of  com- 
promise, is  not  competent  evidence. 

Ib. 

•").  This  court  will  not  weigh  the  evi- 
dence on  a  cfrliorari,  and  will  not 
reverse,  unless  it  np|H-ars  that  somo 
principle  of  law  has  been  violated. 
Lyonx  v.  Lkivi*,  301 

0.  li  evidence  be  impro|M-rly  admit- 
ted because  a  writing  was  not  pro- 
duced, this  court  will  not  reverse 
if  the  writing  was  afterward*  given 
in  evidence.  76. 

7.  In  a  suit  liy  the  mother  against  the 
la 1 1 H-I  for  tin-  support  of  their  child, 


INDEX. 


591 


it  is  incompetent  for  the  mother  toj 
prove  that  the  father  has  made 
parol  admissions  that  they  have 
been  divorced.  Tice  v.  Reeves,  323 

8.  On  an  application  for  a  ca.  sa.  un- 
der the  statute,  a  statement,  that 
defendant  made  certain  represen- 
tations to  the  plaintiff)  which  he, 
the  plaintiff,  had  recently  discov- 
ered were  false,  is  not  sufficient 
evidence  that  the  debt  was  fraud- 
ulently contracted.  Bwme  v.  Titiis 
et  al.,  340 

'9.  The  statements  of  the  defendant 
when  examined  under  the  trustee 
act,  cannot  afterwards  be  sworn  to 
as  evidence  of  fraud,  to  procure  a 
ca.  sa.  Ib. 

10.  The  oath  of  a  town  clerk,  that  u 
certified  copy  of  a  resolution  of  a 
town  meeting  was  copied  from  the 
town  book,  held  to  be  lawful  evi- 
dence,     The  State,  Fennimore,  v. 
Clothier,  351 

11.  To   support    an    action    uopn    a 
physician's  bill,  the  plaintiff  must 
prove  that  he  has  been  duly  li- 
censed, or  has  a  diploma,  as  pre- 
scribed by  the  act  incorporating 
medical  societies.     Dow  v.  Haley, 

354 

12.  Read,   the   defendant,   leased   to 
Barker  and  Barker,  the  plaintiffs, 
a  mill  and  water  power,  and  cove- 
nanted with  them  for  the  use  of  the 
water  in  as  full  and  ample  a  man- 
ner as  he  enjoyed  it.     The  plain- 
tiffs  alleging   that  the  defendant 
had  placed  a  trunk  in  the  pond  in 
such  a  manner  as  to  carry  off  the 
water  of  a  certain  spring,  which 
was  one  of  the  principal  tributa- 
ries to  the  pond,  brought  suit  to 
recover  damages.     Held,  that  the 
opinion  of  millers  and  millwrights, 
whether  they  be  called  experts  or 
practical  men,  as  to  the  quantity  of 
grain  the  mill  was  capable  of  grind- 
ing and  the  value  of  the  water  for 
milling  purposes,  together  with  the 

..^tatement  of  the  methods  used  for 

measuring  or  weighing,  was  com-, 

petent  evidence.    Head  v.  Barker] 

378, 

13.  On  an  application  for  the  benefit 
of  the  insolvent  laws,  creditors  may' 
examine  witnesses  or  offer  evidence 
on  the  subject  of  the  arrest  of  the 
debtor.    Bond  v.  Cm,  38  li 


13.  Opposing  creditors,  or  their  coun- 
sel, have  a  right  to  propound  in- 
terrogatories to  the  debtor  in  re- 
spect to  his  giving  an  inventory  to 
the  officer  who  arrested  him,  and 
it  is  the  duty  of  the  court  to  allow 
all  interrogatories  that  are  legal 
and  pertinent.  Ib. 

15.  Where  a  witness  testifies  thnt  he 
has  often  seen  the  plaintiff  write, 
and  that  he  tnkes  his  signature  to 
a  receipt  offered  in  evidence  to  be 
genuine,  and  the  court  admits  the 
receipt  to  go  to  the  jury,  this  is 
prima  facie  evidence  of  the  genu- 
ineness of  the  receipt ;  and  if,  with- 
out any  further  evidence  upon  the 
subject,  the  jury   regard   the   re- 
ceipt as  a  forgery,  the  verdict  will 
be  set  aside  as  contrary  to  the  evi- 
dence.    Cook,  Ex'r,  v.  Smith,     387 

16.  The  mere  marking  of  a  tax  du- 
plicate as  an  exhibit  does  not  make 
it  competent  evidence  of  the  con- 
tents ;  there  must  be  some  extrin- 
sic proof  of  its  genuineness.    State, 
Allen,  v.  Smith,  449 

17.  A  tax  complained  of  as   illegal 
will  not  be  set  aside  as  illegal,  un- 
less there  is  other  proof  of  the  facts 
necessary  to  show  in  what  the  ille- 
gality consisted,  besides  the  prose- 
cutor's    ex    parte    affidavit    upon 
which  the  cerliorari  was  allowed. 

Ib. 

18.  If  there  be  no  latent  ambiguity, 
the  construction  of  a  will  must  be 
drawn  from  the  words,  and  parol 
testimony   cannot  be  admitted   to 
supply,  contradict,  enlarge,  or  vary 
the  words,  or  to  explain  the  inten- 
tion of  the  testator.  Nevius  v.  Mar- 
tin, 465 

See  CONFESSION  OF  PRISONER. 


EVIDENCE,  CUMULATIVE. 
See  PRACTICE. 

EXECUTION. 

Where  money  raised  by  execution 
was  brought  into  court  for  distri- 
bution, and  claim  made  to  it  not 
only  by  the  execution  creditor,  but 
by  a  landlord  for  the  payment  of 


592 


INDEX. 


rent,  and  also  by  attaching  credit- 
ore,  it  was  held — 
1.  That  to  authorize  payment  to  the 


FRAUDS,  STATUTE  OF. 
An  agreement  to  sell  and  exchange  «• 


horse  and  money  for  a  piece  of 
laud,  is  within  the  statute  of  frauds, 
and  an  action  for  damages  for  re- 
fusal to  convey  the  land  cannot  be 
sustained  on  a  verbal  agreement. 
Rutan  v.  Hinchman,  255 


landlord,  it  must  appear  that  rent 

was  due   him  upon  such  a  lease 

or  contract  as  would  give  him  a 

right  to  distrain.     Kirkpatrick  v. 

Gwon,  331 

2.  That  where  a  jury,  from  the  cir- 
cumstances, would   be  authorized 

in  finding  that  the  landlord  had 

relinquished  his  right  of  distress,1  GAMING. 

the  court  is  justified  in  denying  his 

claim  to  any   part  of  the   money.  Money  bet  on  the  result  of  a  horse 

race,  and  deposited  with  a  stake- 
holder, may  be  recovered  back  be- 
fore the  contract  is  executed.  Sut- 
phin  v.  Grozer,  257 


Ib. 

3.  That  where  the  property  levied  on 
was  of  Jess  value  than  $1200,  and 
no  inventory  or  appraisement  was 
made  by  the  sheriff,  as  directed  by 
law,  but  the  property  was  suffered 
to  remain  in  the  hands  of  the  de- 
fendant, and  the  execution  creditor 
himself  stayed  all  further  proceed- 
ings on  the  execution,  the  goods 
were,  by  consent  of  the  plaintiff, 
in  defendant's  possession  for  his 
use  and  that  of  his  family,  and  not 
as  agent  or  bailiff  of  the  sheriff, 
and  the  sheriff  had  no  further  lien 
on  them,  and  could  not  lawfully: 
sell  them  under  the  execution.  Ib. 


FOREIGN  CORPORATIONS. 

Ferry  boats  owned  by  a  foreign  cor- 
poration, enrolled  in  the  New 
York  custom  house,  used  for  car- 
rying freight  and  passengers  be- 


GIFT. 

1.  Title  to  goods  and  chattels  mar 
pass  by  gift  inter  vitro  when  there 
is  a  delivery  of  the  property.  Mere 
delivery  of  the  goods  will  not,  in 
general,  pass  the  title ;  there  must 
be  an  intention  to  give  accompa- 
nying the  act  of  delivery  in  order 
to  consummate  the  gift,  or  the  cir- 
cumstances attending  the  delivery 
of  the  goods  must  be  such  as  ordi- 
narilv  accompany  a  gift,  inducing 
the  donee  to  believe  that  a  gift 
was  intended.  If  that  be  the  case, 
the  title  to  the  goods  will  pass,  al- 
though it  may  not  be  the  secret 
intention  of  the  donors  to  make  a 
gift.  Beti*  v.  Frtitin'.*,  ].V2 


tween  Jersey  City  and  New  York,  2,  When  a  gift  is  completed  by  de- 


snd  having  no  permanent  location 
in  Jersey  City,  are  not  liable  to  be 
taxed  there ;  such  property  cannot 
be  said  to  be  situate  in  any  town- 
ship or  ward.  The  Stale  v.  Haiyht, 
OoUector,  428 

See  CONSTITUTIONAL  LAW. 


FRAUD. 

See  PURCHASER. 

INSOLVENT  DEBTOR. 


FRAUDULENT  CONVEYANCE. 
See  INSOLVENT  DEBTOR. 


livery  and  acceptance  of  the  chat- 
tel, it  is  irrevocable.  So  long  :IH 
there  is  no  delivery  and  accept- 
ance,  it  may  be  revoked.  Ib. 


GUARDIAN  AND  WARD. 

1.  By  the  term  guardian,  in  tho  Oth 
section  of  the  act  of  1799,   Rft: 
Lam,  is  meant  such  guardians  fe 
arc  named  in  the  previous  sections 
of  the  act.    Grah/an  v.  Houghtnlin, 

563 

2.  A  minor  who  is  seized  of  a  re- 
mainder in  fee  expectant  upon  th« 
death  of  his  father,  who  has  a  life 
estate  therein,  cannot  be  a  ward  in 
ftocage,  nor  can  his  father  be  his 
guardian  in  socage.  Ib. 


INDEX. 


593 


3.  The  father,  who   is  guardian  by 
nature  only,  and  not  appointed  by 
any  court  or  competent  authority, 

is  not  a  guardian  within  the  mean-  2 
ing  of  the  phrase  "other  guardi- 
an," named  in  the  3d  section  of 
the   said   act   of    1799   respecting 
guardians.  Ib. 

4.  A  father,  as  guardian  by  nature,  is 
not  appointed ;   it  results  to  him 
by  operation  of  law.  Ib. 

5.  A  guardian  by  nature  is  guardian 
of  the  person  only,  and  not  of  the 
estate.  Ib. 


HOBOKEN  CITY  CHARTER. 

3.  Ordinances  of  the  mayor  and  com- 
mon council  of  the  city  of  Hobo- 
ken,  prescribing  the  mode  aud 
time  of  running  horse  cars  through 
the  streets  of  said  city  by  any  cor- 
poration which  has  laid  rails  for 
the  purpose  of  running  horse  cars 
thereon,  and  also  that  a  license 
shall  be  first  taken  out  under  cer- 
tain penalties  therein  mentioned, 
held  invalid  against  the  prosecu- 
tors, holding  under  their  charter 
and  also  under  anterior  rights  de- 
rived from  the  Bergen  Turnpike 
Company,  such  company  having 
the  right  to  lay  rails  through  the 
city  without  the  consent  of  the 
city  council.  The  State,  Hoboken 
and  Weehawken  Ibiilroad  Co.,  v. 
The  Mayor,  &c.,  of  Hoboken,  225 

2.  The  supplement  to  the  charter  of 
the  city  of  Hudson,  of  the  15th 
March,  1861,  authorizing  the  com- 
mon council  to  grant  permission  to 
any  persons  or  corporation  to  lay 
railroad  tracks  through  the  streets, 
and  run  cars  on  them,  under  such 
licenses  and  conditions  as  the  said 
council  should  think  proper,  and 
subject  to  be  revoked  at  pleasure, 
held  to  be  prospective,  and  not  to 
affect  existing  rights.  Ib. 

See  ORDINANCES. 


HUSBAND  AND  WIFE. 

.1.  Under  the  3d  section  of  the  act  of 
March,  1852,  Nix.  Dig.  503,  for  the 
better  securing  the  property  of 
married  women,  a  married  woman  I 


can  receive  to  her  sole  use  a  deed 
for  lands  for  a  term  of  years. 
Stall  v.  Fulton  and  Wife,  430 

When  such  a  deed  expresses  on  its 
face  that  the  consideration  was 
paid  by  the  wife,  the  presumption 
is  that  the  consideration  was  her 
own  money.  Ib. 

The  creditors  of  the  husband,  un- 
der judgment  and  execution  against 
him  upon  a  cause  of  action  arising 
anterior  to  the  deed,  cannot  get  a 
title  at  law,  as  against  the  wife,  so 
as  to  maintain  ejectment  against 
the  husband  and  wife,  nor  turn  her 
out  of  possession.  The  whole  legal 
title  remains  in  the  wife  by  force 
of  the  statute,  even  if  the  consid- 
eration money  of  the  deed  was  the 
property  of  the  husband.  Ib. 

.  The  earnings  of  the  wife,  upon  ex- 
press promise  to  pay  her,  belong  to 
her,  and  not  to  her  husband,  until 
he  does  some  act  with  intent  to  re- 
duce them  into  possession ;  and  if 
he  dies  first,  they  survive  to  the 
wife ;  and  if  with  such  proceeds 
she  buys  land,  and  the  deed  is 
made  to  her  before  the  conversion 
by  the  husuand,  the  land  belongs 
to  her,  and  cannot  be  seized  and 
sold  by  his  creditors  under  judg- 
ment against  him.  Ib. 
The  husband  is  not  obliged  to,  nor 
is  he  guilty  of  any  fraud  against 
creditors,  if  he  does  not  convert  to 
his  or  their  use  the  earnings  of  the 
wife.  Ib. 

See  WITNESSES. 

INDICTMENT, 

,  An  indictment  will  lie  for  a  nui- 
sance in  obstructing  Hudson  river, 
by  placing  vessels  and  wrecks  on 
the  shore  between  the  high  and 
low  water  lines,  but  not  for  placing 
them  below  the  low  water  line. 
State  v.  Babcock.  29 

,  The  exclusive  jurisdiction  in  and 
over  the  waters  of  the  Hudson, 
and  in  and  over  the  land  covered 
by  those  waters,  is  in  the  state  of 
New  York,  and  not  in  the  state  of 
New  Jersey.  76. 

.  Any  place  of  public  resort,  in 
which  illegal  practices  are  habitu- 
ally carried  on,  or  when  it  becomes 
the  habitual  resort  of  thieves, 


594 


INDEX. 


drunkards,  prostitutes,  or  other 
idle,  vicious,  and  disorderly  per- 
sons, who  gather  together  there  for 
the  purpose  of  gratifying  their  own 
depraved  appetites,  or  to  make  it  a 
rendezvous  where  plans  may  be 
concocted  for  depredations  upon 
society,  and  to  disturb  either  its 
peace  or  its  rights  of  property,  is  a 
public  nuisance.  State  v.  Wil- 
liams, 103 

4.  No  private  individual  has  a  right, 
for  his  own  amusement  or  gain,  to 
carry  on  a  public  business  clearly 
injurious  to  and  destructive  of  the 
public  quiet,  health,  or  morals,  and 
is  indictable  for  so  doing,  because 
the  injury  is  of  a  public  character, 
and  uot  merely  private  to  a  siugle 
individual.  76. 

6.  Violence  and  noise  are  not  neces- 
sary constituents  of  a  disorderly 
house ;  it  is  sufficient  to  show,  un- 
der the  general  allegations,  a  house 
ill  governed  and  disorderly,  in  the 
sense  stated,  to  warrant  a  convic-1 
tion.  Ib. 

6.  Anv  person  who  keeps,  or  causes 
to  be  kept,  for  his  own  profit  or 
amusement,  or  for  any  other  cause, 
such  a  place  of  resort,  or  rents  any 
building  to  any  person,  knowing 
that  the  same  will  be  so  kept,  is 
guilty    of    an    indictable    misde- 
meanor. Ib. 

7.  To  justify  a  conviction  of  a  land- 
lord, who  rents  to  a  tenant  a  place 
kept  as  a  disorderly  house,  the  evi- 
dence should  clearly  show  that,  at 
the  time  of  leasing,  the  landlord 
knew  tli«--   purposes  for  which,  or 
the  mode  in  which  the  house  was 
to  be  kept.  Ib. 

8.  The  mere  power  of  the  landlord  to 
i-x|»-l  his  t'-trmt.  by  summary  pro- 
ceedingH,  for  nonpayment  of  rent 
according  to  the  terms  of  the  let- 
ting, although  connected  with  the 
failure  t<>  avail  himself  of  it  wln-n 
the    1 1' i  i-.-    has    been   disorderly, 
doe*  no}  of  itMelf  make   him   re- 
Hpon«iblf*.  Ib. 

9.  M«-re  nonfeanance  on  the  part  of 
the  landlord  cannot  involve  him  in 
the  guilt  of  the  tenant ;   but  if  he 
in  active  in  advising  the  keeping  of 
the'houM  in  a  disorderly  manner, 
or  in  aiding  or  amUling,  or  gives 
his  consent  nnd  approbation  to  it- 
bcing  HO  kept,  he  becomes  a  partici- 


pant in  the  act  characterized  by 
the  criminal  law  as  disorderly;  but 
his  sanction  and  consent  ought  not 
to  be  inferred  from  the  mere  fact 
of  his  non-interference  with  the 
conduct  of  his  tenant,  without  some 
other  acts  or  declarations  on  his 
part,  giving  a  decided  character  to- 
ll is  sanction  and  consent.  76. 

10.  The  sale  of  liquor  on  the  Sabbath 
day  is  unlawful,  and  a  practice  of 
so   keeping  a  house  as  to  violate 
the  law  /.-  to  make  it  disorderly. 

76. 

11.  The  inhabitants  of  counties  were 
not  indictable  at  common  law  for 
not  repairing  bridges  over  canals, 
but  only  bridges  over  rivers.   State 
v.  Hudson  county,  137 

12.  The   inhabitants  of   counties   in 
this  state  are  not  indictable  for  not 
repairing   bridges  over   rivers  in 
this  state.  76. 

13.  On  an  indictment  for  rape,  the  de- 
fendant mav  be  convicted  of  an  as- 
sault, and  found  not  guilty  of  the 
rape.     State  v.  Johnson,  185 

15.  Under  the  laws  of  this  state,  a 
party  indicted  for  a  crime  may  be 
convicted  of  any  offence  of  a  lower 
degree,  provided  such  lower  offence 
is  mcluued  within  the  description 
in  the  indictment,  without  regard 
to  the  question  whether  it  was  or 
was  not  technically  a  felony.  76. 

15.  An  indictment  for  stealing  load 
water-pipe,  fixed  to  a  paper  mill, 
is  indictable  under  the  "i'iih  section 
of  the   statute  resj>ecting  crimes. 
Nix.  Dig.  188.    Stale  v.  Stone,    299 

16.  An  indictment  under  the  act  of 
1849,  (Nix.   Dig.  193,  \  103,)  for 
causing  and  procuring  the  miscar- 
riage of  a  woman  then  pregnant 
with  child ,  must  charge  that  the 
defendant  did  the  acts  in  the  statute 
specified,  with  intent  to  cause  and 
procure    the    miscarriage.      Both 
words  must  be  uned  conjunctively, 
in  order  to  charge  in  the  indict- 
ment i  li«-  intent  which  the  statute 
make*  criminal.     State  v.  Drake. 

422 

17.  A  charge  in  the  indictment,  that 
lip-  defendant  administered  a  cer- 
tain poison,  or  drug,  or  medicine, 
or  noxious  thing,  is  bad,  because  it 
does  not  charge  that  he  adminis- 
tered the  whole  of  the  prohibited 
things,  nor  any  one  of  them.      76. 


INDEX. 


595 


INSOLVENT  DEBTOR. 

1.  A    debtor    under     bond,    usually 
called  an  insolvent  bond,  need  not 
surrender,  and  be  placed  in  close 
confinement  before  the  filing  of  an 
undertaking  by  a  creditor.     Until 
the  Court  of   Common  Pleas,  for 
some  reason,  make  a  final  decision 
in  the  matter,  the  debtor   is  not 
bound  to  surrender  himself   into 
custody.     Doremus  v.  Bush,         85 

2.  That  part  of  the  sixth  section  of 
the  act  in  regard  to  insolvent  debt- 
ors (Nix,  Dig.  378),  which  requires 
the  debtor's  conduct  to  be  fair,  up- 
right, and  just,  must  be  restricted 
to  his  conduct  in  making  his  ac- 
count and  inventory,  and   in  de- 
livering up  to  his  creditors  all  his 
estate,  and  does  not  apply  to  the 
conduct  of  the  debtor  in  contract- 
ing his  debt.   Reford  v.  Cramer,  250 

3.  If  the  debter  has  made  a  convey- 
ance of  his  real   property  to  his 
wife,  although    before    the  debts 
were  contracted,  it  is  a  question  for 
the  jury  whether  such  conveyance 
was  made  with  intention  to  defraud 
his  creditors.     Such  conveyance  is 
not  per  se  fraudulent  and  void  ;  yet, 
if  not  made  bona  fide  and  for  the 
benefit  of   the   wife,   but  with   a 
fraudulent  intent,  it  comes  within 
the  provision  of  the  tenth  section 
of  the  insolvent  act,  and  is  a  good 
bar  to  the  defendant's  discharge.  1  b. 

See  PRACTICE,  15,  16. 


JERSEY  CITY  CHARTER. 

Under  the  charter  of  Jersey  City, 
only  such  resolutions  and  ordi- 
nances of  the  common  council  as 
are  in  their  nature  final  need  be 
presented  to  the  mayor  for  appro- 
val ;  when  a  final  ordinance  pro-! 
vides  for  a  different  improvement 
from  that  asked  for  in  the  petition 
presented  to  the  council,  and  speci- 
fied in  the  public  notice  given  ac- 
cording to  the  charter,  it  will  be 
set  aside  and  held  void  as  against 
the  prosecutors.  State,  Howheth,  v. 
Jersey  City,  93 

See  ASSESSMENT. 

WATER  COMMISSIONERS. 


JOINT  AND  SEVERAL. 

If  one  of  three  makers  of  a  joint  and 
several  promissory  note  die,  the 
contract  of  the  surviving  makers 
remains  joint  as  well  as  several, 
and  payment  of  interest  within 
six  years  by  one  of  the  surviving 
makers  will  take  the  case  out  of 
the  statute  of  limitations.  Corlies 
v.  Fleming,  349 

See  JUDGMENT,  2. 


JUDGMENT. 

L.  Upon  the  application  to  cancel  a 
judgment  in  this  court,  on  the 
ground  that  certain  bonds,  to 
which  the  defendants  alleged  the 
judgment  was  collateral,  had  been 
paid  and  satisfied  by  the  accept- 
ance of  other  bonds  of  a  like 
amount,  the  court  will  not  inter- 
fere where  it  appears  that  the  orig- 
inal bonds  were  collateral  to  the 
judgment,  and  that  the  new  bonds 
were,  by  agreement,  substitutions 
for  those  first  given.  By  such 
agreement,  the  defendants  are  es- 
topped from  denying  that  the 
judgment  was  merely  collateral. 
Cmuter  v.  Kaighn,  98 

2.  It  seems  that  the  representatives 
of  one  of  the  defendants  in  a  joint 
judgment  .who   has  died  may  be 
sued,  although  the  other  defendant 
is  living.  Parker  v.  Thompson,  311 

3.  The  judgment  against  executors  of 
their  own  wrong  should  be  special 
and  not  general.  Ib. 


JURISDICTION. 

.  An  indictment  will  lie  for  a  nui- 
sance in  obstructing  Hudson  river, 
by  placing  vessels  and  wrecks  on 
the  shore  between  the  high  and 
low  water  lines,  but  not  for  placing 
them  below  the  low  water  line. 
State  v.  Babcock,  29 

.  The  exclusive  jurisdiction  in  and 
over  the  water  of  the  Hudson,  and 
in  and  over  the  land  covered  by 
those  waters,  is  in  the  state  of 
New  York  and  not  in  the  state  of 
New  Jersey.  Ib. 

.  The  tribunal  of  the  commissioners 


596 


INDEX. 


of  appeal  is  a  special  tribunal,  andi 
it  is  well  settled  that  such  tribu-jl 
nals  should  show,  upon  the  fac*e  of, 
the  proceedings,  all  facts  necessary1' 
to  give  jurisdiction.  Nixon  v.  Ru-t, 
pie,  58" 

4.  Where  a   city  charter   authorizes11 
street  improvements  to  be  made,  »r 
work  done,  only  on  the  application 
in  writing  to  the  council,  of  a  ma- 
jority of   the  resident   owners  of1! 
property  lying  along  such  street,  it  I 
should  appear  in  the  return  to  tin- 
eertiorari  bringing  up   for  review 
the  proceedings  of  the  city  council,1! 
that  the  application  is  signed  by  HJJ 
majority  of   the  resident  owners; 
the  burthen  of  proof  is  on  the  de-' 
fendanls,    and   such    fact,  being   a 
jnrisdietiotiril  one,  m:ist  ap|x-:\r  on 
the  fa<;e  of  their  proceedings.  Stale,' 
Woodruff,  v.  City  Council  of  Eliza- 
beth, 176 

5.  On  an  application  for  the  benefit 
of  the  insolvent  laws,  in  order  to 
give  the  hoard  jurisdiction  of  such 
application,  the  debtor,  at  the  time 
of  giving  bond,  should  he  under 
arrest  or  held  in  custody.     Bond 
v.  Cox,  33 1( 

6.  The  proceedings  of  surveyor*  of  the 
highways   in    vacating   part   of  a 
street  which  had  been  dedicated  to 
public  use,  but  never  recognized  as 
a    public   highway    by   lawful  au-| 
thoriiy,  held  to  be  void.     (See  1' 
ttetulry  299.  llnlmr*  v.  Jersey  City. ) 
The  Court  of  Common  Pleas  can-) 
not  appoint  surveyors  to  vacate  a 
mere  act  of  dedication.  Mayor,  Ac.,1 
ofjertey  City  v.  State,  Ilowclk,  521 

Set  DKKD.  10,  11. 


interests  in  succession,  at  periods 
which  must  arrive,  the  interest  of 
the  first  and  subsequent  takers  will 
vest  together.  Green  v.  HowtU, 

327 

LIMITATIONS,  STATUTE  OF. 

If  one  of  three  makers  of  a  joint  and 
several  promissory  note  die,  the 
contract  of  the  surviving  makers 
remains  joint  as  well  as  several, 
and  payment  of  interest  within  six 
years  by  one  of  the  surviving  ma- 
kers will  take  the  case  out  of  the 
statute  of  limitations.  Corlies  v. 
Fleming,  349 


LIEN  LAW. 

l.The  vessel  lien  law  of  this  state 
applies  as  well  to  foreign  as  to  do- 
mestic vessels.  Randall  v.  Roche, 

220 

2.  A  lien  for  supplier  furnished  to  a 
foreign  vessel,  on  the  credit  of  one 
of  the  owners  or  the  master,  does 
not  create  a  maritime  lien  on  the 
vessel  wilhiu  the  jurisdiction  of  the 
United  States  courts  of  admiralty, 
and  may  be  enforced  in  the  courts 
of  this  state.  76. 


LAMBI:RTVILLE  CHARTER. 

See  STATUTE,  CONSTRUCTION  or,  2, 
3,  4. 


LANDLORD  AND  TENANT. 

See  EXECUTION,  1,  2. 
INDICTMENT,  5,  0,  7. 

LEGACY. 

When   the   al»o|iitc   property    in   a 
fund   i»  bequeathed   in   fractional 


MANDAMUS. 

1.  When  a  proper  remedy.     Callahan 
v.  Tmcnithip  nf  Morris,  174 

2.  Attachments    for    not   obeying   a 
i/ci /»</.( HI  H.I  to  open  a  road  served  on 
the  overseer  after  he  went  out  of 
office,  and  on  the  new  overseer,  re- 

l.     Slate  v.  Elkinton,  335 

3.  .l/'f'ir/<ii/M/ji  to  ojii-ii  a  road  ought  to 
!»«•,  in  the  first  instance,  an  alterna- 
tive writ,  and  not  peremptory,  and 
li«\v  obtained.  Ib. 

'i.Tlie  writ  should   be  delivered  or 

•MI  to  the  person  to  whom  it  is 

directed.  Ib. 

r-tvr  of  the  highway  is  bound 

to  ojK>n  and  work  the  road  without 

regard  to  the  orders  of  the  town 

meeting  or  the  township  committee. 

76. 

MARRIED  WOMEN. 

See  1 1 1  -i:  \M-  A.M.  WIFE. 


INDEX. 


MASTER  AND  SERVANT.      | 

1.  A  master  is  liable  to  answer  in  a 
civil  suit  for  the  tortious  acts  of  | 
his  servant,  if  the  act  be  done  in, 
the  course  of  his  employment  in 
his  master's  service,  or  within  the 
scope  of  his  authority  ;  whether  so 
done  or  not,  must  depend  upon  the 
facts  of  each  particular  case.     Ay-\ 
crigg's  ex'rs  v.  The  New  York  and 
Erie  Railroad  Company,  460 

2.  What  acts  of  the  captain  of  a  ferry 
boat  may  be  considered  as  not  be- 
ing in  the  course  of  his  employ- 
ment. Ib. 


MORTGAGE. 
See  DEED,  6. 

MUNICIPAL  CORPORATION. 

1.  The  powers  of  a  municipal  corpo- 
ration are  derived  from  its  charter. 
It  cannot,  without  express  au- 
thority from  the  charter,  create  an 
office,  define  its  duties,  appoint  an 
incumbent,  and  clothe  him  with 
the  powers  of  a  municipal  officer. 
Mayor,  &c.,  of  Hoboken  v.  Harrison, 

73 

*2.  Where  an  officer  of  a  municipal 
corporation  gives  Ins  official  bond 
with  sureties,  'which  bond  recites 
that  he  has  been  appointed  "col- 
lector of  assessments  for  street  im- 
provements," with  condition  that 
"  he  should  well  and  truly  pay  to 
the  treasurer  of  said  city  all  moneys 
which  he  might  collect  or  receive 
as  such  collector  as  aforesaid,"  &c., 
the  sureties  are  estopped  from  de- 
nying that  such  officer  was  de  facto 
a  collector  of  assessments  for  street 
improvements  and  their  liability 
to  pay  over  what  he  has  collected  is 
co-extensive  with  his  liability.  Ib. 

-3.  The  fact  that  bonds  are  not  pre- 
scribed by  law  does  not  necessarily 
invalidate  them,  although  given 
by  a  public  officer  as  security  for 
the  discharge  of  his  duties,  if  they 
are  not  unlawfully  exacted  of  him  ; 
if  voluntarily  given,  they  are  bind- 
ing upon  the  parties  to  them.  Ib. 

A.  On  petition  to  a  municipal  au- 
thority, asking  that  a  street  mayi 


be  paved,  the  city  council  may 
regulate  the  surface  of  the  street, 
by  filling  and  excavating  it,  pre- 
paratory to  paving  it,  and  include, 
as  a  necessary  incident,  the  costs  of 
such  grading  in  the  assessment  for 
the  costs  of  paving.  The  State, 
Hand,  v.  City  Council  of  Elizabeth, 

365 

5.  Assessments  for  the  paving  of  in- 
tersections, under  the   charter   of 
the  city  of  Elizabeth,  must  be  con- 
fined to  the  line  of  the  street  on 
which  the  improvement  is  applied 
for.  Ib. 

6.  An  incorporated  city  has  jurisdic- 
tion  over   a   turnpike    road    con- 
structed  within  the  limits  of  the 
city,  for  the  purpose  of  regulating, 
grading,  and  paving  it,  but  has  no 
right    to   regulate   and   grade  the 
street  so  as  to  injure  the  turnpike 
company,  or  to  interfere  with  their 
chartered  rights ;  for  police  purpo- 
ses, it  has  authority  to  make  such 
municipal   regulations  as   it  may 
deem  expedient.     State,  Parker,  v. 
Mayor,  &c.,  of  New  Brunswick,  395 


NEW  TRIAL. 

New  trial  applied  for  on  the  ground 
that  a  witness  for  the  defendant 
made  statements  in  the  hearing  of 
some  of  the  jury  which  might  have 
influenced  the  verdict,  but  refused, 
as  it  appeared  that  there  was  no 
evil  intention,  that  the  defendant 
had  no  concern  in  the  transaction, 
and  that  the  verdict  was  satisfac- 
tory to  the  court.  Jones  v.  Vail, 

135 

See  PRACTICE. 


NONSUIT. 
See  PRACTICE. 

NOTICE  OF  PROTEST. 
See  PROMISSORY. NOTES. 

NUISANCE. 
See  INDICTMENT,  1,  3,  4,  5. 


598 


INDEX. 


OFFICIAL  BONDS. 


1.  Where  an  officer  of  a  municipal 
corporation  gives  his  official  bond'1 
with  sureties,  which  bond  recites, 
that  he  has  been  appointed  "col-'1 
lector  of  assessments  for  street  im-|i 
provements,"  with  condition  that 

•      he  should  well  and  truly  pay  to!' 
the    treasurer    of    said    city    all 
moneys  which  he  might  collect  or 
receive  as  such  collector  as  afore-" 


thereon,  and  also  that  a  license 
shall  be  first  taken  out  under  cer- 
tain penalties  therein  mentioned, 
h'-ld  invalid  against  the  prosecu- 
tors,  holding  under  their  charter 
and  also  under  anterior  rights  de- 
rived from  the  Bergen  Turnpike 
Company,  such  company  having 
the  right  to  lay  rails  through  the 
city  without  the  consent  of  the  city 
council.  State,  lloboken  Railroad 
i..  v.  Mayor,  fa.,  of  ffoboken,  225 


said,"  &c.,  the  sureties  are  es-j  ,3.  The  charter  of  the  city  of  Newark 
topped  from  denying  that  such,!  requires  certain  ordinances  to  be 
officer  was  de  facto  a  collector  of  I  published  for  a  certain  time,  and 


assessment*  for  street  mprove- 
ments, and  their  liability  to  i»ay 
over  what  he  has  collected  is  co-l 
extensive  with  his  liability.  Hobo- 
ken  v.  Harrison,  73' 

2.  The  fact  that  bonds  are  not  pre-j 
scribed  by  law  does  not  necessarily 
invalidate   them,   although    given 
by  a  public  officer  as  security  for 
the  discharge  of  his  duties,  if  they 
are  not  unlawfully  exacted  of  him  ; 
if    voluntarily     given,    they    are 
binding  upon  the  parties  to  them. 

76. 

3.  A  bond  by  an  executor  or  admin- 
istrator,   to   the   Ordinary,   which 
varies  from  the  form  prescribed  by 
the    statute,  if  voluntarily  given, 
and  not  made  void  by  the  statute, 
is  good.     Ordinary  v.  Cuoley,     179 


ORDINANCES. 

1.  Under  the  charter  of  Jersev  City,' 
only    such    resolutions   anJ   ordi- 
nances of  the  common  council  as  are 
in  their  nature  final  need  be  pre- 
sented to  the  mayor  for  approval  ; 
when  a  final  ordinance  provides  for 
a  different  improvement  from  that 
asked  for  in  the  |>etition  presented 
to  the  council,  and  specified  in  the 
public  notice  given   according   to 
the  charter,  it  will  lie  -et  aside  and 
held  void  as  against  the  prosecu- 
tors.    Slate,  Uf/Wflh,   v.  Mayor  of 
Jertey  City,  93 

2.  Ordinances    of    the    mavor    ami 


in  a  certain  manner,  between  their 
second  and  thin!  readings.  Such  nn 
ordinance,  having  been  read  a  se- 
cond time,  and  ordered  to  a  third 
reading,  was  reconsidered  and 
taken  up,  and  the  vote  of  the  last 
meeting  ordering  it  to  a  third  read- 
ing reconsidered,  and  a  section  of 
the  ordinance  materially  amended. 
It  was  then,  at  the  same  sitting, 
ordered  to  a  third  reading,  and 
finally  passed  ;  hM,  that  when  the 
vote  ordering  it  to  a  third  reading 
was  reconsidered,  and  the  proposed 
ordinance  put  again  upon  its  second 
reading,  it  could  not  be  lawfully 
read  again  without  the  notice  re- 
quired by  the  charter.  State,  Doyle, 
v.  .\fayor,  <tr.,  of  Newark,  303 

4.  If  an  ordinance  requires  a  street  to 
\te  proj»erly  regulated  and  graded, 
<&c.,  without  any  fixed  grade  being 
established,  and  afterwards  pro- 
vides that  the  work  be  done  under 
the  niperintendeaoe  of  the  city 
paver,  or  other  |Hjrson  appointed 
by  the  common  council,  and  thi* 
is  in  accordance  with  the  terms  of 
the  charter,  it  is  sufficient.  State, 
Parker,  v.  Mayor,  <tc.,  of  JWw 
Brunswick,  '  3U5 

ORPHANS  COURT. 

See  GCARDIAN  AND  WARD. 
DEED. 

OVERSEERS  OF  HIGHWAYS. 


IIKi 

common  council  of  the  city  of  Ho-  .1.  The  township  committee  have  n» 
boken,  prescribing  the  mode  and       p <.\ver  to  authorize  an 


lime*  of  running  hop*- rant  through 
the  streets  of  *aid  citv  bv  any  cor- 
]M>ration  which  lm«  iai<i  rails  for 
the  purpose  of  running  horse  can 


to  expend  money  for  their 
repair,  »o  an  to  render  the  town- 
ship liable  to  an  action.  Callchan 
\.  1'he  Township  of  JUorrit,  100 


INDEX. 


2.  Roads  must  be  opened  or  worked 
for  cash  or  upon  the  credit  of  the 
overseer ;  or  if  the  overseer  is  not 
furnished   with    money,   he    may| 
warn  out  the  inhabitants  to  work 
without  pay.  Ib. 

3.  The  township   committee  are  au- 
thorized to  apportion  the  money 
raised  for  road  purposes  among  the 
several  districts ;   but  they  ought 
not   to  make   the   apportionment, 
and  newly  assign  to  the  overseers' 
their    respective    divisions    until* 
twenty  days  after  the  town   meet- 
ing;   so   that   it   may   be   known 
what  taxpayers  have  given  notice 
that  they  will  work  out  their  road 
tax.  2b.\ 

4.  Attachment  for  not  obeying  a  man-, 
damns  to  open  a  road  served  on' 
the  overseer  of  the  highways  afterj 
he  went  out  of  office,  and  on  the 
new  overseer,  his  successor,  refused. 
The  State  v.  Elkinton,  335 

5.  The  writ  of  mandamus  to  open   a 
road  should  be  delivered  or  shown! 
to  the  person  to  whom  it  is  di- 
rected. Ib. 

6.  The   overseer  of  the  highway  is' 
bound  to  open  and  work  the  road; 
without  regard  to  the  orders  of  the 
town    meeting    or    the    township 
committee.  Ib. 

PAETNERSHIP. 

A  firm  in  the  country  was  dissolved 
in  1849,  and  no  notice  of  dissolu- 
tion given.  In  18GO  one  of  the 
partners  drew  a  .note,  and  signed 
to  it  the  name  of  the  firm  without 
the  knowledge  or  consent  of  the 
other  partner,  and  such  paper  was 
discounted  by  a  bank  in  Philadel- 
phia without  inquiry.  Held,  that 
such  note  was  not  binding  on  the 
firm.  Farmers  &  Mechanics  Bank 
v.  Green,  316 

PHYSICIAN'S  BILL. 

To  support  an  action  upon  a  physi- 
cian's bill,  the  plaintiff  must  prove 
that  he  hasjoeen  duly  licensed  or 
has  a  diploma,  as  prescribed  by  the 
act  incorporating  medical  societies. 
Dow  v.  Haley,  354 

See  ACTION. 


PLANK  ROAD. 

L.  A  plank  road  company  is  in  fact 
a  turnpike  company  within  the 
meaning  of  the  tax  law  of  1854, 
(Mix.  Dig.  851,  $  64,)  requiring 
"  the  personal  estate  of  such  com- 
pany to  be  assessed  in  the  township 
or  ward  in  which  the  treasurer  or 
other  officer  authorized  to  dis- 
charge the  general  pecuniary  obli- 
gations of  such  company  resides." 
The  Slate,  Jersey  City,  &c.,  Plank 
Road  Co.  v.  Haight,  443 

2.  A  plank  road  constructed  by  a 
private  company  and  under  legis- 
lative authority,  and  dedicated  to 
public  travel,  with  gates  erected 
thereon  for  the  collection  of  tolls, 
as  a  condition  of  such  travel,  may 
properly  be  termed  a  turnpike 
road,  without  regard  to  the  mate- 
rial of  which  the  surface  of  the 
road  may  be  composed.  Ib. 

See  TAXATION. 


PLEAS  AND  PLEADING. 

1.  In  an  action  of  trespass  quare  clau- 
sum  fregit  before  a  justice  of  the 
peace,  the  defendant  pleaded  title- 
and  a  right  of  way  over  the  close 
in  question.    Upon  such  suit  being 
brought  in  this  court,  the  defend- 
ant filed  six  pleas.     On  motion  to 
strike  out  pleas,  it  was 

Held,  that  the  first  plea  of  not  guilty, 
not  being  the  same  plea  as  that 
pleaded  before  the  justice,  must  be 
stricken  out ;  that  the  second  plea 
of  liberum  tenementum  is  correct ; 
that  the  fourth  plea,  that  the  locus 
in  quo  was  a  public  highway,  is 
not  a  plea  of  title,  and  is  not  good ; 
that  the  third  and  fifth  pleas,  set- 
ting up  a  right  of  private  way  by 
prescription,  and  a  right  of  private 
way  by  grant,  if  wrong,  may  be  de- 
murred to,  but  cannot  be  stricken 
out  on  motion  ;  and  that  the  sixth 
plea,  that  the  locus  in  quo  was  a 
by-way,  and  that  it  had  beeu 
opened  by  three  of  the  chosen  free- 
holders, does  not  amount  to  a  plea 
of  title,  and  must  be  stricken  out. 
Brain  v.  Snyder,  57 

2.  Customs  and  usages  in  derogation 
of  the  common  law  must  be  strictly 


600 


INDEX. 


pleaded,  and  when  well  pleaded, 
the  count  must  show  a  case  clearly 
within  the  usage,  Overman  v.  Hn- 
boken  City  Bank,  61 

3.  In  au  art  ion  for  a  penalty  for  the 
violation  of  a  city  ordinance,  which 
declares  that  it  shall  not  be  lawful 
for  any  person  to  burn  tan  in  pro- 
pelling machinery,  or  for  any  other 
purpose,  to  the  annoyance  and  dis- 
comfort of  any  person  or  IKTSOIIS 
residing  in  his  or  their  vicinity: 
and  if  he  does,  and  sli:ill   not  im- 
mediately desist,  upon  the  request 
of  any  citizen  annoyed  thereby,  or 
shall  be  guilty  of  any  subsequent 
violation   of   such  ordinance,   lie 
shall  be  liable  to  a  tine,  &e.,  it  is 
necessary  to  allege  in  the  suite  of: 
demand  a  burning  after  a  request! 
to  desist,  and   the   names  of  the! 
persons  who  were  annoved.     Tyler] 
v.  Zxztown,  120| 

4.  A  declaration  alleged,  that  whereas] 
the  defendant,  by  a  certain  bond,' 
did  recite  that  he  held  a  bond  and| 
mortgage  given  by  J.  A.  S.  to  him,; 
as  trustee,  to  be  appropriated   by 
the  defendant  to  the  support  of  one| 
M.  S.  during  her  life,  and  to  pay 
the  residue  that  might  remain  in1 
his  hands  to  the  plaintiff. 

Held  that  a  plea  averring  that  the 
land  covered  by  the  mortgage  has 
been  sold,  and  all  its  proceeds  ab- 
sorbed bv  prior  encumbrances,  was 
a  good  defence.  Staats  v.  Bergen, 

131 

6.  A  bond,  by  an  executor  or  admin- 
istrator, to  the  Ordinary  of  the  state, 
which  varies  from  the  form  pre- 
scribed by  the  statute,  if  volunta- 
rily given,  and  not  made  void  by 
statute,  is  good  ;  and  when,  by  the 
condition  of  such  bond,  the  execu- 
tor or  administrator  b  required  to 
render  a  just  and  true  account  con- 
cerning the  sale  of  property,  an 
••UK  ti  m  en  t  of  a  breach  of  such 
condition,  that  he  had  not  render**'! 
a  just  and  true  account  of  his  ad- 
ministration of  the  moneys  arising 
from  the  Rale,  i-  bad  on  demurrer/ 
Ordinary  v.  CuoUy,  17'.' 

6.  In  an  action  of  irespaiw  in  a  jus- 
tice*fl  court,  a  plea  that  there  was  a' 
road  acrom  the  l»rus  in  quo,  to 
which  the  defendant*  had  a  title  in 
common  with  all  other  citizen*  ofi 
this  state,  and  that  they  entered 


within  the  limits  of  (hi*  r»ad,  is 
not  a  plea  of  title  to  any  real  es- 
tate. Such  plea  means  nothing 
more  than  that  the  defendants  had 
right,  in  common  with  all  citizens, 
to  a  road  across  the  lociis  in  quo, 
which  is  merely  a  right  of  high- 
way. Yatcger  \.  Manning,  182 

7.  The  defendants  tendering  the  plea 
as  a  plea  of  title,  are  not  thereby 
estopped  from  denying  that  it  was 
such  plea,  unless  on  the  ground  of 
wilful  misrepresentation  by  defend- 
ants »>n  which  the  plaintiff  was  in- 
duced to  act  to  his  injury.  76. 

8.  To  a  suit  on  a  judgment  in  New 
York,  the  plea  of  nil  debet  is  the 

•     general  issue.     Beale  v.  Berryman, 

216 

9.  Under  our  statutes  of  1799.  Nix. 
Dig.  681,  |  2,  and  of  March  6th, 
1852,  Nix.  Dig.  681,  it  is  regular  in 

!  such  suit  to  plead  ni7  debft,  and 
give  notice  that  no  summons  had 
Been  served  in  New  York  ;  and 
judgment  signed,  as  for  want  of  a 
plea,  will  be  set  aside  with  costs.  Ib. 

10.  One  of  the  conditions  of  an  ordi- 
nary administration  bond  is.  that 
the  administrator  will  pay  over  to 
the  persons  entitled  all  the  residue 
of  the  goods  and  chattels  found  re- 
maining upon  the  account  of  the 

1  administrator.  Held,  that  it  is  no 
breach  of  this  condition  that  the 
administrator  has  or  has  not  paid 

I  over  to  the  creditors  their  pro  rata 
share  ordered  to  be  paid  to  them 
by  the  Orphans'  Court,  and  that 

:  the  remedy  of  the  creditors  is 
under  the  other  conditions  of  the 
bond.  Ordinary  v.  Oooley,  271 

11.  The  history  and  origin  of  the  dif- 
ferent conditions  of  the  adminis- 

!     trators*  bond  commented  upon.  Ib. 

12.  A  stale  of  demand  against  a  bene- 
ficial society  claiming   a    balance 
alleged  to  be  due  during  the  plain- 
tiff's sickness,  at  the  rate  of  three 

'     dollars   per  week,  "the  sum  paid 
bv  said  society  to  the  sick  of  said 
iety,"  li'l'l,  not  to  contain  a  legal 
cause  of  action.     Beneficial  Socisty, 
&c.,  v.  White,  313 

PLEA  OF  TITLE. 


PLEAS  AND  PLEADING,  1,  6, 


INDEX. 


601 


PRACTICE. 

1.  When,  upon  the  trial  day,  the  de- 
fendant moves  to  nonsuit  the  plain- 
tiff' because  the  costs  of  two  former 
suits  for  the  same  cause  of  action 
have  not  been  paid,  and  the  de- 
fendant   offers    to    pay   the  costs 
forthwith,  and  the  defendant  is  not 
prepared  with  his  bills  of  costs  or 
to  show  the  amount  of  costs  due, 
he  is  not  entitled  to  a  judgment  of 
nonsuit.     Janeway  v.  Skerritt,     97 

2.  To  a  suit  on  a  judgment  in  New 
York,  the  plea  of  nil  debet  is  the 
general  issue.    Beale  v.  Berryman, 

216 

3.  Under  our  statutes  of  1799,  Nix. 
Dig.  681,  |  2,  and  of  March  6th 
1852,  Nix.  Dig.  681,  it  is  regular  in 
such  suit  to   plead  nil  debet,  and 
give  notice  that  no  summons  had 
been  served  in  New  York ;   and 
judgment  signed  as  for  want  of  a 
plea,  will  be  set  aside  with  costs. 

Ib. 

4.  Service  of  a  notice  of  trial  at  the 
office  of  the  attorney,  who  was  ab- 
sent in  Europe,  and  on  the  plaintiff", 
also,  held  good.  Bearwood  v.  Smeth- 
urst,  230 

5.  The  defendant  noticed  for  trial  an 
action  of  replevin ;    the  plaintiff 
not  appearing,  a  verdict  was  taken 
for  defendant.   Held  irregular,  and 
verdict  set  aside.  A  nonsuit  should 
have  been  entered,  and  the  dam- 
ages then  assessed.  Ib. 

6.  An  ex  parte  affidavit  allowed  to  be 
read  on  the   motion   to  set  aside 
verdict.  Ib. 

7.  In  an  action  on  a  constable's  bond, 
a  rule  for  the  assessment  of  dam- 
ages in  open  court  or  for  a  writ  of 
inquiry,  under  the  practice  act  and 
supplements,    is    not    authorized. 
Mayor,  &c.,  of  Jersey  City  v.  Chase 
et  aL,  233 

8.  If  neither  party  applies  for  an  as- 
sessment of  the  damages  by  a  jury, 
the  court  will  assess  them  ;  if  either 
party  does  so  apply,  a  writ  of  in- 
quiry will  be  awarded,  which  in 
this  case  was  ordered  to  be  exe- 
cuted before  a  judge  at  the  circuit, 

Ib. 

9.  If  damages  are  claimed  for  a  per- 
son other  than  the  original  prose- 
cutor, upon  a  special  notice,  before 
the  writ  issues,  the  damages  sus 


tained  by  him  will  be  ordered  to  he 
assessed  by  the  same  jury.          Ib. 

10.  A  certiorari   for  the    purpose  of 
removing  an   assessment,  brought 
within  a  reasonable  time  after  the 
assessment  was   ratified  and  con- 
firmed, will  not  be  dismissed  be- 
cause the  ordinance  which  is  thus 
brought  incidentally   in    question 
was  passed  a  long  time  previous. 
The   State,   Doyle,   &c.,   v.   Mayor, 
&c.,  of  Newark,  303 

11.  A  ca.  su.  cannot  be  issued  pending 
proceedings  under  the  act  to  pre- 
vent   fraudulent     trusts    and    as- 
signments.    Bowne  v.    Titus,  &c., 

340 

12.  It  is  not  sufficient  for  the  commis- 
sioner to   decide   that   there   was 
proof,  to  his  satisfaction,  that  the 
defendant   had   rights   or  credits, 
moneys  or  effects,  either  in  his  own 
possession,  or  in  the  possession  of 
some  other  persons ;  in  the  words 
of  the  act,  he  should  specify  by 
means   of   which   of   the   several 
things  mentioned,   the  fraud  was- 
committed.  Ib. 

13.  If   a  plaintiff,  who  becomes  en- 
titled to  a  judgment  by  default  in 
vacation,  omits  to  enter  the  same 
until  after  the  term  next  after  such 
default,  he  cannot  have  such  judg- 
ment until  he  has  given  thirty  days' 
notice  to  the  defendant.     Slack  v. 
Eeeder,  348 

14.  When  a  witness,  who  has  been  in 
attendance  during  the  progress  of 
a  trial,  fails  to  appear  when  called, 
the  court  will  not  reverse  a  judg- 
ment for   that   cause,   no   motion 
having  been  made  to  postpone  the 
case  or  procure  the  testimony  of 
the  witness  de  bene  esse  ;  and  espe- 
cially when  it  appears  that  the  evi- 
dence of  the  witness,  had  he  been 
present,  would  have  been  only  cu- 
mulative.    Read  v.  Barker,        378 

15.  On  an  application  for  the  benefit 
of  the    insolvent    laws,   creditors 
may   examine    witnesses   or  offer 
evidence  on  the  subject  of  the  ar- 
rest of  the  debtor.     Bond  et  al.  v. 
Cox,  381 

16.  Opposing  creditors,  or  their  coun- 
sel, have  a  right  to  propound  in- 
terrogatories to  the  debtor  in  re- 
spect to  his  giving  an  inventory  to 
the  officer  who  arrested  him,  and 
it  is  the  duty  of  the  court  to  allow 


602 


I  X  D  E  X  . 


all  interrogatories   that  are  legal 
and  pertinent.  Ib. 

See  CAPIAS  AD  SATISFACIENDUM. 
CEBTIORARI. 


PRESUMPTION. 

When  an  exception  is  general  as  to 
the  law  upon  a  particular  part  of 
the  judge's  charge,  and  the  assign- 
ment is  also  general,  all  the  testi- 
mony necessary  to  support  the 
legal  proposition  will  be  presumed 
to  have  been  before  the  jury.  Per- 
rine  v.  Serrdl,  454 


PRIVATE  CORPORATION. 

See  ASSESSMENT. 
TAXATION. 


PROCURING  MISCARRIAGE. 
See  INDICTMENT,  15. 16. 

PROMISSORY  NOTES. 

1.  A   firm    in  the   country  was  dis- 
solved in  1849,  and  no  notice  of 
dissolution  given.     In   1860,  one 
of  the  partners  drew  a  note,  and 
signed  to  it  the  name  of  the  firm 
without  the  knowledge  or  consent 
of  the  other  partner,  and  such  pa- 
I'.-r  was  discounted  by  a  bank  in 
Philadelphia      without     inquiry. 
Hfld,  that  such  note  was  not  bind- 
ing on  the  firm.     Farmer*  and  Me- 
chanic* Bunk  v.  Gretn,  316 

2.  If  one  of  three  makers  of  a  joint 
and  several  promissory  note  die, 

•  the  contract  of  the  surviving 
makers  remains  joint  M  well  as 
several,  and  payment  of  interest 
within  six  years  by  one  of  the  sur- 
viving makers  will  take  the  case 
out  of  the  statute  of  limitation*. 
Gorlitt  v.  Fleming,  449 

PURCHASER 

An  innocent  purchaser  of  property, 
who  has  bought  it  in  a  fair  bomi 
fid*  manner  at  a  fair  price,  cannot 


be  deprived  of  it  because  the  object 
of  the  seller  was  to  defraud  his 
creditors. — By  ELMER,  J.  Farrell 
v.  Colwell,  123 


RAILROADS. 

1.  When  a  railroad  company  is  sued 
for  damages  sustained  by  a  colli- 
sion on.  their  road,  induced  by  the 
negligence  of  the  company  or  their 
agents,   and    it  appears   that  the 
party  injured  was  himself  guilty  of 
such  negligence  or  want  of  reason- 
able care  as  contributed  to  the  do- 
ing of  the  injury,  there  can  be  no 
recovery.     Telfer  v.  Northern  Sail- 
road  Company,  188 

2.  "  In  crossing  ordinary  roads,  cau- 
tion and  care  are  chiefly  demanded 
to  avoid  running  against  or  over 
anybody  else;  in  crossing  railroads, 
it  is  exacted  to  avoid  being  run 
over  yourself.     In  the  former  cmse 
the  blame  attaches  prima  facie  to 
the  party  doing  the  injury ;  in  the 
latter,  it  attaches,  in  the  first  in- 
stance, to  the  party  obstructing  the 
track."— Per  VAN  DYKE,  J.      /6. 

3.  In  an  action  under  the  statute  to 
recover  damages  for  death  caused 
by  negligence,  only  the  pecuniary 
loss  or    injury  sustained    by   the 
plaintiff  can  be  allowed ;   and  in 
estimating    that    the    chances  of 
health  and  life  are  to  be  considered 
in  connection  with   the  value  of 
services.  Ib. 

4.  The  reciprocal  duties  of  railway 
companies    and    IMTSOHS  crossing 
their  roads  discussed.  If). 

5.  A   railroad    company,   furnishing 
their   own   conveyances,  carrying 
nothing  but  passengers,  and  charg- 
ing a  certain  price  as  fare,  cannot 
be  considered  a  toll  collecting  com- 
pany.     The  Sttile,  Jertey  City,  v. 
Haight,  447 

6.  The  personal  propertv  of  such  com- 
pany should  In-  tnxol  in  the  town- 
ship or  wnrd  where  the  principal 
linsiness  of  such  company  is  trans- 
acted. Ib. 


BAILROAD  CHARTER. 

1.  The  charter  of  the  Morri*  and  Es- 
sex Railroad  Company  subject*  the 


INDEX. 


603 


company  to  a  tax  of  one  and  a  half 
per  cent,  on  the  cost  of  the  road,  as 
soon  as  the  net  proceeds  shall  equal 
seven  per  cent.,  and  provides  that 
no  other  tax  shall  be  levied  upon 
the  company.  By  the  terms  of 
the  charter,  it  may  be  altered  or 
repealed  by  the  legislature.  The 
subsequent  general  tax  law  of  1862 
subjected  to  taxation  the  real  estate 
of  all  private  corporations,  "ex- 
cept those  which  by  virtue  of  any 
irrepealable  contract  in  their  char- 
ters or  other  contracts  with  the 
state  are  expressly  exempt  from 
taxation,"  and  it  repealed  all  acts, 
whether  special  or  local,  inconsist- 
ent with  its  provisions.  Held,  that 
the  tax  law  of  1862  repealed  the 
provision  of  the  charter  in  regard 
to  taxation,  and  that  the  assess- 
ment made  upon  the  real  estate  of 
the  company  in  the  township  of 
Morris  was  rightfully  made  under 
the  general  law.  State,  Morris  and 
Essex  Railroad,  v.  Miller,  368 

2.  No   "  irrepealable    contract "   can 
result  from  provisions  in  a  charter 
which  is  made,  in  terms,  subject  to 
alteration,  amendment,  or  repeal 
by  the  power  granting  it.  Ib. 

3.  Where  the  right  to  alter  or  amend 
a  charter,   whenever    the    public 
good  may  require,  is  reserved,  the 
legislature  is  the  proper  tribunal  to 
determine  when  the  right  shall  be 


exercised. 


Ib 


KAPE. 


See  INDICTMENT,  12, 13. 

BENT. 
See  EXECUTION. 

REMAINDER. 

See  DEED,  9, 10. 


ROADS. 

1.  Where  a  turnpike  road  has  been 
abandoned  for  many  years  by  the 
company  which  built  it,  and  has 
been  used  by  the  public  as  an  or- 
dinary highway,  and  repaired  at 
the  public  expense,  it  becomes  sub- 


ject to  the  laws  concerning  roads, 
and  the  surveyors  of  the  highways 
have  power  to  vacate  it.  The  State, 
Snedeker,  v.  Snedeker,  80 

2.  A   plaintiff    in   certiorari   cannot, 
unless   holding   the  rights  of  the 
turnpike  corporation,  assign,  as  a 
reason  for  setting  aside  the  action 
of  the  surveyors,  that  it  is  in  vuV- 
lation  of  the  rights  of  the  com- 
pany. Ib. 

3.  Every  citizen  is  interested,  more 
or  less,  in  every  highway,  and  has 
a  right   to  submit  any  questions 
affecting     such    interests    to    the 
court.  Ib. 

I    See  TOWNSHIP  COMMITTEE. 
MANDAMUS. 
SURVEYORS  OF  HIGHWAYS. 


SABBATH. 

The  sale  of  liquor  on  the  Sabbath 
day  is  unlawful,  and  a  practice  of 
so  keeping  a  house  as  to  violate 
the  law,  is  to  make  it  disorderly. 
State  v.  Williams,  102 


SCHOOL  LAW. 

l.The  act  of  March  27th,  1862, 
(Laws  1862,  307,)  is  not  a  supple- 
ment to  the  act  of  March  14th, 
1851,  (Laws  1851,  260,  \  11,)  but  a 
distinct  and  independent  act,  and 
does  not,  in  order  to  raise  the 
necessary  money  by  taxation,  re- 
quire a  resolution  of  two-thirds  of 
the  inhabitants  present  at  the 
meeting  of  the  taxable  inhabitants 
of  the  district,  or  the  certificate  of 
the  school  trustees  to  be  under 
oath.  The  State,  Van  Riper,  v. 
Ryerson,  268 

2.  On  a  certiorari  to  set  aside  an  as- 
sessment imposed  by  a  meeting  of 
the  taxable  inhabitants  of  a  school 
district,  (Nix.  -Dig.  780)  the  court 
will  not  decide  the  legal  existence 
of  such  corporation,  or  the  legality 
of  the  election  or  appointment  of 
the  persons  who  acted  as  trustees 
to  incorporate  the  district.      The 
State,  Winsor,  v.  Donahay,          504 

3.  The   certificate  of  the  trustees  of 
the   proceedings  of  a  meeting  to 
order  money  to  be  raised  by  taxa- 


604 


INDEX. 


tion,  need  not  set  forth  the  places 
at  which  the  notices  of  the  meet- 
ing were  set  up ;  if  in  the  words  of 
the  act,  "  in  at  least  three  public 
places  in  said  district,"  it  is  suffi- 
cient, Ib. 


STATE   BONDS. 
See  TAXATION,  1,  4. 

STATE  JURISDICTION. 

The  exclusive  jurisdiction  in  and 
over  the  waters  of  the  Hudson,  and| 
in  and  over  the  lands  covered  l>\- 
those  waters,  is  in  the  state  of  New 
York,  and  not  in  the  state  of  New 
Jersey.  The  State  v.  Babcock,  29 

STATUTES,   CONSTRUCTION 
OF. 

1.  Whether  a  general  law  repeals  any 
of  the  provisions  of  a  special  char- 
ter, is  a  question  of  legislative  in- 
tention.     If  the  words  of  repeal 
are  so  strong  as  to  admit  of  no 
doubt  as  to  the  intention  to  repeal 
they  shall  take  effect.     Mechanic* 
and  Traders  Bank  v.  Bridges,     112 

2.  The   first    section   of    the  act  of 
March    17th,  1858,   in   regard   to 
damages  to  property  in  cases  of  the 
alteration  of  the  grades  of  streets' j 
or  highways  \Su.  Dig.  752),  ap-jj 
plies  to  the  alteration  of  a  grade 
not    before   formally   established.! 
Inhabitants  of  LambertviUe  v.  Cler- 
inger,  53 1 

3.  The  charter  of  LambertviUe  pro- 
vides   that   the  common    council 
shall  not  alter  the  grade  of  any1 
street  which  has  been  built  upon 
and  which  has  IK-CII  fixed  by  law- 
ful authority,  unless  by  the  consent! 
of  the  owners  of  a  majority  of  the 
lots,  &c. ;  lolil.  that  this  provision 
applies  only  to  the  altering  of  a 
grade  previously  fixed  by  lawful 
authority.  Ib. 

4.  In  such  action  the  defendants  not 
permitted    to    deduct    from     the 
amount  of  damage*   sim'ained  by 
the  plaint iti°  the  amount  of  benefit* 


derives,  in  common  with  other  pro- 
perty holders  on  the  street,  by  the 
making  of  the  improvement,  and 
the  benefit  he  receives  in  common 
with  others  cannot  be  deducted 
from  his  damages.  Ib. 

See  DAMAGES. 

RAILROAD  CHARTERS,  1,  2,  3. 


STEALING     LEAD     FROM 
BUILDINGS. 

See  INDICTMENT,  14. 


SURVEYORS  OF  HIGHWAYS. 

1.  The  proceedings  of  surveyors  of 
the  highways  in  vacating  part  of  a 
street  which  had  been  dedicated  to 
public  use,  but  never  recognized  as 
a  public  highway  by  lawful  au- 
thority, held  to  be  void.  (See  1 
Beaglfy  299,  Holmes  v.  Jersey  City.) 
The  Court  of  Common  Pleas  can- 
not ap|>oii)t  surveyors  to  vacate  a 
mere  act  of  dedication.  The  May- 
or, &c.,  v.  The  State,  Howeth,  521 
Under  the  2d  section  of  the  act 
concerning  roads,  Nix.  Dig.  737, 
the  courts  of  Common  Pleas  and 
Supreme  Court  are  bound,  as  a 
legal  necessity,  to  appoint  the  sur- 
veyors of  the  township  through 
which  the  road  is  to  run,  unless  it 
is  to  run  through  their  lands,  or 
unless  the  court,  for  some  other 
reason  in  the  exercise  of  a  sound 
discretion,  shall  think  they  ought 
not  to  be  appointed.  Parsells  et  al. 
v.  The  State.  Mann  et  al.,  630 

3.  The  simple  fact,  that  the  surveyors 
are  taxpayers  in  the  township,  is 
not  sufficient  to  exclude  them,  or 
to  warrant  the  courts  in  refusing 
to  appoint  them.  The  supplement 
of  1860,  making  the  townships  lia- 
ble to  pay  for  lands  taken  for 
roads,  furnishes  no  ground  in  itsrlf 
to  which  the  discretion  of  the. 
courts  ran  be  applied.  It  may  l»e 
an  element,  among  other  roMQtM, 
which,  taken  together,  the  court 
may  deem  sufficient  to  exclude  the 
surveyors  from  appointment.  //,. 


derived  by  him  from  the  Improve-  4.  The  Court  of  Common  Plea*-, 
ment  of  the  street.  The  land  owner  I  having  exercised  their  discretion 
is  entitled  to  the  bent-fit  which  he  •  iu  the  matter  of  appointment,  and 


INDEX. 


605 


having  so  certified  in  their  order,  it 
is  not  the  subject  matter  of  review 
in  the  Supreme  Court.  Ib. 

5.  If  the  grounds  for  exclusion  can 
be  inquired  into,  the  court  below 
must  oe  called  on  to  certify  the 
facts  in  regard  to  them,  before  the 
testimony  of  witnesses  can  be  re- 
sorted to.  The  evidence  of  one  of 
the  judges  who  made  the  order,  is 
insufficient  to  contradict  the  lan- 
guage made  use  of  by  the  whole 
court  on  the  face  of  the  order  of 
appointment.  Ib. 


ships,  one  of  which  was  occupied 
by  the  owner,  and  the  other  by 
his  son.  who  tilled  the  farm  upon 
shares,  held  to  be  all  occupied  by 
the  owner,  and  to  be  rightfully 
taxed  to  him  in  the  township 
wherein  he  resided.  The  State, 
Apgar  v.  Hoffman,  346 

8.  It  seems  that  the  act  to  make  taxes 
a  lien  on  real  estate,  Nix.  Dig.  853, 
§  33,  is  only  directory,  and  is  in- 
dispensable only  for  the  purpose 
of  authorizing  a  sale  of  the  land 
when  the  owner  is  a  nonresident. 

Ib. 

9.  A   tax  voted   by  a  special  town 
meeting  to  pay  bounties  to  volun- 
teers, unauthorized  by  any  special 
law,  where  the  notice  of  the  meet- 
ing did  not  specify  the  object,  and 
no  specific  sum,  nor  any  certain 
means  of  ascertaining  the  proper 
amount  were  determined,  held  to 
be   illegal.      State,   Fennimore,  v. 

2.  The  stocks  and   securities   issued       Clothier,  351 
by  the  United   States  under  thej !  10.  The  town  clerk's  oath,  that  a  cer- 
power  to   borrow  money  are  ex-      tified  copy  of  a  resolution  of  the 
empt  from  state  taxation  in   the       town  meeting  was  copied  from  the 
hands  of  individuals  or  corpora- j     town  book,  held  to  be  sufficient.  Ib. 
tions.                                             jT6.:;ll.  A  tax   illegally  assessed  will  be 

3.  Stocks  in  foreign  corporations,  held  I     reversed  and  set  aside  when  regu- 


TAXATION. 

,  The  bonds  issued  by  this  state  un- 
der the  act  of  1861  (Laws  1861,  jo.1 
654,)  are  exempt  from  taxation 
when  held  by  individuals  or  cor- 
porations. Newark  City  Bank  v. 


by  individuals  resident  in  this 
state,  are  personal  estate  within 
this  state,  and  subject  to  taxation. 

Ib. 


larly  before  the  court  on  a  certio- 
rari,  although  it  has  been  collected 
by  warrant.  Ib. 

|12.  The  charter  of  the  Morris  and 


4.  Corporations  are  entitled  to  have  I     Essex  Eailroad  Company  subjects 


deducted  from  the  amount 
capital  stock  paid  in,  and  accumu- 
lated surplus,  the  amount  of  the 
bonds  of  this  state  and  the  stock 
and  public  securities  issued  by  the 
United  States  owned  by  them  at 
the  time  of  assessment.  Ib.\ 

5.  Under  the  tax  law  of  1862,  a  resi- 
dent of  Jersey  City  is  liable  to  tax-' 
ation  for  stocks  in  foreign  corpo- 
rations held  by  him.      Merchants 
and  Traders  Sank  v.  Bridges,  &c., 

112 

6.  The  tax  law  of  1862,   repeals  so 
much  of  the  charter  of  Jersey  City, 
passed   in    1851,  as   regulates  the 
things  and  property  made  taxable, 
but  does  not  repeal  the  mode  of; 
levying  and~collecting  the  tax  by 
the   officers   appointed   under  the1 
charter  and  its  supplements.      Ib.1 

7.  A  farm   lying  in   two  townships, 
upon  which  there  was  a  dwelling 
house  situate  in  each  of  said  town- 

VOL.  i.  2  P 


the  company  to  a  tax  of  one  and  a 
half  per  cent,  on  the  cost  of  the 
road,  as  soon  as  the  net  proceeds 
shall  equal  seven  per  cent.,  and 
provides  that  no  other  tax  shall  be 
levied  upon  the  company.  By  the 
terms  of  the  charter,  it  may  be  al- 
tered or  repealed  by  the  legislature. 
The  subsequent  general  tax  law  of 
1862  subjected  to  taxation  the  real 
estate  of  all  private  corporations, 
"  except  those  which  by  virtue  of 
any  irrepealable  contract  in  their 
charters  or  other  contracts  with 
the  state  are  expressly  exempt  from 
taxation,"  and  it  repealed  all  acts, 
whether  special  or  local,  inconsist- 
ent with  its  provisions.  Held,  that 
the  tax  law  of  1862  repealed  the 
provision  of  the  charter  in  regard 
to  taxation,  and  that  the  assess- 
ment made  upon  the  real  estate  of 
the  company  in  the  township  of 
Morris  was  rightfully  made  under 


606 


INDEX. 


the  general  law.  The  State,  Morris' 
and  Etxfx  Railroad  Company  v. 
Miller,  368 

13.  No  "irrepealable  contract"  can 
result  from  provisions  in  a  charter 
which  is  made,  in  terms,  subject  to 
alteration,  amendment,  or  repeal 
by  the  power  granting  it.  76. 

14.  Where  the  right  to  alter  or  amend 
a    charter,   whenever  the    public 
good  may  require,  is  reserved,  the 
legislature  i*  the  proper  tribunal  to 
determine  when  the  right  shall  be 
exercised.  76. 

15.  Ferry  boats,  owned  by  a  foreign 
corporation,  enrolled  in  New  York 
custom   house,    used    for  carrying 
freight    and    passengers    between 
Jersey  City  and   New   York,  and 
having  no  permanent  location  in 
Jersey  City,  are  not  liable  to  be 
taxed  there  ;  such  property  cannot 
be  said  to  be  situate  in  any  town- 
ship or  ward.    The  State,  New  York 
and    Erie    Railway    Company,    v. 
Haight,  428 

16.  A  plank  road  company  is  in  fact, 
a  turnpike    company   within   the 
meaning  of  the  tax  law  of  1854, 
(Nix.  Dig.  851,  $  94,)  requiring  the 
personal  estate  of  such  company  to 
be  assessed  in  the  township  or  ward 
in   which  the   treasurer  or  other 
officer  authorized  to  discharge  the 
general  pecuniary  obligations  of 
such  company  resides."   The  State, 
Jersey  City,  &c.,  v.  Haight,        443 

17.  A  railroad  company,  furnishing 
their  own   conveyances,   carrying 
nothing  but  passengers,  and  charg- 
ing a  certain  price  as  fare,  cannot 
be  considered  a  toll  collecting  <-<>m 
pany.     The  State,  Jersey  City  and 
Bergen    Railroad   Co.,    v.   Jlaiyht 

443| 

18.  The  12th  section  of  the  tax  law 
of  1862  repeals  those  ports  of  the 
act  of  1854  which  relate  to  mort- 
gages, so  that  all  personal  estate, 
including    all    debts    secured    by 
mortgage,  is  to  be  taxed.     State, 
Same,  v.  Johnson,  452 

19.  To  entitle  a  taxpayer  to  have  the 
debts  he  owed  deducted,  he  must 
have  an  affidavit  made  out  and  de- 
livered to  the  a.H*e*Hor  before  the 
time  limited  by  law  for  cloning  the 
a^aemment  roll.      The  :i*-.  s-or  is 
not  bound  to  do  it  for  him.     If  ne- 
glected, the  commuaiotMn  of  ap- 


peal  may  waive  it,  and  make  the 
deduction ;  but  if  they  decline  to 
do  so,  the  court  will  not  set  aside 
the  tax.  76. 

20.  A  law  laying  a  special  tax  on  the 
business  of  foreign  corporations, 
regularly  doing  business  in  this 
state,  transporting  passengers  and 
merchandise  across  the  state,  from 
and  to  foreign  states,  such  tax  being 
graduated  hy  the  number  of  the 
passengers  and  the  weight  of  the 
goods  carried,  is  not  an  infringe- 
ment of  that  clause  of  the  consti- 
tution of  the  United  States  which 
gives  to  congress  the  power  to 
regulate  commerce  among  the 
several  states.  The  State  v.  Dela- 
ware, &c.,  R.  R.  Co.,  473 

•Jl.  Such  commerce  is  not  of  such  a 
national  character,  that  a  state 
may  not  regulate  it  in  the  manner 
complained  of,  without  violating 
the  constitution  of  the  United 
States,  76. 

22.  Such  tax  is  merely  a  tax  upon  the 
company,    in    proportion    to    the 
number  of  passengers  and  weight 
of    merchandise    transported     by 
them  within  this  slate,  and  not  a 
regulation  of  commerce  among  the 
states.  76. 

23.  A     foreign     corporation,     upon 
which  has  l>een  conferred  by  the 
legislature  of  this  state  the  power 
to  purchase  and  hold  lands  in  this 
state,  does  not,  by  reason  of  such 
legislative  action,  lose  ito  foreign, 
and  acquire  a  domestic  character. 
A  corporation  can  be  properly  said 
to  exist  only  in  the  state  which 
created  it.  76. 

TAX  LAW  OF  1862. 

24.  Under  the  act  of   1862,  private 
mr|>ora(ions  must  be  assessed  at 
the  full  and  actual  value  of  their 
capital  stock,  and  not  on  the  full 
amount  of  their  capital  stock  paid 
in.     Thf  State,  Gloucester  Afanuf'g 
OL.  v.  HnUnm,  405 

').  The   provisions  of   several   con- 
flicting sections  of   the   bill   dis- 
'  /6. 

TOWNSHIP  COMMITTER 
il.  The  township  committee  have  no 


INDEX. 


607 


power  to  authorize  an  overseer  of 
roads  to  expend  money  for  their 
repair,  so  as  to  render  the  township 
liable  to  an  action.  Callahan  v. 
Inhabitants  of  Morris,  160 

2.  Koads  must  be  opened  or  worked 
for  cash  or  upon  the  credit  of  the 
overseer  ;  or  if  the  overseer  is  not 
furnished   with    money,   he    may 
warn  out  the  inhabitants  to  work 
without  pay.  Ib. 

3.  The  township   committee  are  au- 
thorized to  apportion  the  money 
raised  for  road  purposes  among  the 
several  districts;   but  they  ought 
not  to   make  the    apportionment 
and  newly  assign  to  the  overseers 
their    respective    divisions    until 
twenty  days  after  the  town  meet- 
ing ;  so  that  it  may  be  known  what 
taxpayers  have  given  notice  that 
they  will  work  out  their  road  tax. 

Ib. 

4.  The  committee  ought  to  keep  a 
record  of  their  proceedings,  and 
make  all  their  orders  in  writing.  Ib 

See  MANDAMUS,  5. 


TURNPIKE  ROAD. 

Where  a  turnpike  road  has  been 
abandoned  for  many  years  by  the 
company  which  built  it,  and  has 
been  used  by  the  public  as  an  ordi- 
nary highway,  and  repaired  at  the 
public  expense,  it  becomes  subjec 
to  the  laws  concerning  roads,  anc 
the  surveyors  of  the  highways 
have  power  to  vacate  it.  The 
Slate,  Snedeker,  v.  Snedeker,  80 

See  PLANK  ROAD,  1,  2. 


UNITED  STATES  BONDS. 
See  TAXATION,  2,  4. 

VERDICT. 

Where  a  witness  testifies  that  he  has 
often  seen -the  plaintiff  write,  am 
that  he  takes  his  signature  to  a  re 
ceipt  offered  in  evidence  to  .be  gen 
uine,  and  the  court  admits  the  re 
ceipt  to  go  to  the  jury,  this  is  prima 
facie  evidence  of  the  genuineness 


of  the  receipt ;  and  if,  without  any 
further  evidence  upon  the  subject, 
the  jury  regard  the  receipt  as  a  for- 
gery, the  verdict  will  be  set  aside 
as  contrary  to  the  evidence.  Cook, 
<5zV,  v.  Smith,  387 


VESSELS. 
See  LIEN  LAW. 

WARRANTY. 

Under  a  warranty  that  a  horse  is 
sound  and  kind,  and  that  if  he 
should  not  suit,  the  seller  would 
take  him  back,  and  send  the  pur- 
chaser another,  held  that  the  war- 
ranty as  to  unsoundness  was  inde- 
pendent, and  that  the  right  to  pro- 
vide another  horse  under  the  con- 
tract did  not  extend  to  unsound- 
ness  ;  that  the  horse  being  unsound, 
and  having  died,  the  purchaser 
could  recover  damages,  and  was 
not  obliged  to  call  upon  the  seller 
to  furnish  another  horse.  Perrine 
v.  Serrell,  454 

See  DAMAGES. 


WATER   COMMISSIONERS, 
JERSEY  CITY. 

1.  The  water  commissioners  of  Jersey 
City  are  authorized  to  execute  the 
plan  of  sewerage  adopted  by  them, 
"  with  such  changes  or  alterations 
as  may  be  found  convenient  or  ne- 
cessary  in    the    progress   of    the 
work ;"   if  the  general  plan  con- 
templated the  use  of  an  old  sewer, 
the  commissioners,  if  they  find  it 
convenient    and    necessary,    may 
abandon  that  part  of  the  plan,  and 
construct  a  new  sewer  in  place  of 
the  old  one.     Of  this  the  commis- 
sioners are   the  sole  judges,  and 
having   acted   thereon,  this  court 
has  no  authority  to  review  their 
decision.      The    State,    Piard,   v. 
Mayor  and  Common  Council  of  Jer- 
sey City,  148 
The  State  v.  Water  Commissioners, 

Ib. 

2.  The  charter  requires  the  signature 
of  the  mayor  to  all  resolutions  af- 


608 


INDEX. 


feeling  the  interests  of  the  city; 
held,  that  a  resolution  of  the  com- 
mon council  referring  a  petition 
for  a  sewer  to  the  committee  on 
sewerage  does  not  require  the  sig- 
nature of  the  mayor.  Ib. 
3.  By  the  act  of  1854,  (Laws  1854, 
404,)  the  legislature  intended,  after 


the  general  plan  of  sewerage  was 
adopted  by  tiie  city,  to  secure  the 
execution  of  it  by  the  water  com- 
missioners, and  to  take  from  the 
mayor  and  common  council  all  2 
duties  and  authority  respecting  it, 
except  on  application,  after  giving 
notice  and  hearing  objections,  to 
determine  the  time  when  the  work, 
or  any  part  of  it,  should  be  done. 


Ib. 


Sot 


CITY  CHAKTKB. 


WILL. 

.See  DEVISE. 

WITNESSES. 

In  a  suit  in  which  husband  and 
wife  are  joined  as  parties,  neither  is 
a  competent  witness  for  or  against 
the  other.  Handlong  and  Wife  v. 
Barnes,  69 

Under  the  "act  concerning  wit- 
nesses," (Nix.  Dig.  928),  neither 
husband  nor  wife,  in  any  suit  or 
proceeding  in  which  they  are 
joined  as  parties,  is  a  competent 
witness  for  or  against  the  other.  Ib. 
Under  the  same  act,  neither  party 
can  be  sworn  when  the  other  party 
is  prohibited  by  any  legal  disa- 
bility. Ib. 


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